1. The deceased herein died on 2nd February 2015. The grant of representation in respect of his estate was issued to the appellant and the respondent jointly on the 2nd day of December 2021. The appellant filed a summons for confirmation with a proposal on the distribution of the estate. The respondent opposed the proposal by filing a replying affidavit in which she gave her counter-proposal on distribution. The trial court then delivered its ruling on 7th November 2022, distributing the estate as follows: property known as Title No. Gilgil/Karunga Block 9/1754 measuring 1.5ha be shared amongst Rebecca Muthoni and her three children, Gabriel Maina, Michael Maina and Jonathan Irungu, in equal undivided shares; property known as Title No. Salama Pasi Block 1/24(OMC) measuring 3.627 ha shall be shared between Rebecca and her sons in equal, undivided shares; property known as Plot No.1/MN/12830/Bamburi to Tabitha only; shares in Mboi-Kamiti Farmers Limited to be shared amongst the five beneficiaries equally; pension and retirement benefits at KCB, Kilindini Branch to the two administrators equally; motor vehicle KAC 074Q to Rebecca Muthoni; shares at Gatatha Farmers Company Limited to be shared amongst between the widows in equal terms; and shares at NBK Bank KCB, Standard Chartered Bank, Kenya Airways and Rea Vipingo Estate to the deceased’s children equally.
2. Dissatisfied, the appellant appealed to this court seeking to have the allocation of Plot No.MN/1/12830 and pension and retirement benefits to the respondent by the learned magistrate, Hon. Nabibya, on 7th November 2022 in Succession Case No.24 of 2017 set aside and substituted with an order, allocating Plot No. MN/1/12830 to the appellant and other beneficiaries, namely, Gabriel Maina Kamau, Michael Maina Kamau and Jonathan Irungu Kamau, and allocating pension and retirement benefits to the appellant alone and for the costs of the appeal to be in the cause. The appeal is based on the following grounds:-
a) That the learned Hon Magistrate erred in law and, in fact, by allocating Plot No. MN/1/12830 to the respondent alone, excluding the appellant and other beneficiaries; and
b) That the learned Hon Magistrate erred in law by allocating pension and retirement benefits to the respondent.
3. The appeal was canvassed by way of written submissions. Both parties filed written submissions which I shall refer to below.
4. The appellant, through her advocates J. Katisya & Associates Advocates, filed her written submissions dated 1st February 2024. Counsel submitted on two issues, namely, whether the honourable magistrate erred in allocating Plot No. 1/MN/12830/ Bamburi solely to the respondent and whether the Honourable Court erred in allocating pension and retirement benefits at KCB, Kilindini Branch equally.
5. On the first issue, counsel relied on Sections 40, 35(5) and 38 of the Law of Succession Act and submitted the deceased did not distribute his estate amongst his wives prior to his death, and therefore, the estate should be divided equally among the surviving beneficiaries. Section 40 of the act provides that the estate of the deceased be divided equally among the houses in accordance with the number of children per house.
6. Further, the subject property is the largest among all other properties of the deceased and was acquired by the deceased and the appellant during the subsistence of their marriage in 1994 before the respondent got married. The respondent was not blessed with children of her own, and thus, the court’s decision to allocate her entire plot was misinformed. Counsel urged the court to apportion the said property accordingly.
7. On the second issue counsel submitted that the respondent did not contribute to the marriage between the appellant and the deceased to warrant the court to award her a share in the benefits. Counsel urged the court to award the same to the appellant and her children.
8. The respondent, on the other hand, filed her written submissions dated 17th February 2024. She Relied on sections 3(5), 29 and 40 of the Law of Succession Act and submitted that the estate of the deceased, when divided into five units, constitutes a share of 20% for each unit and by right, she is entitled to 20% share of the estate of the deceased. She urged that the plot allocated to her does not constitute more than 20% of the net residual estate of the deceased. She has lived on the said property allocated to her by the deceased for over 10 years with no interruptions and has done major developments thereon. It would be unfair for the same to be allocated to the appellant and her children. She submitted that the learned magistrate did not error in allocating her the same as it forms part of her matrimonial home.
9. On the second issue, she submitted that the appellant enjoyed pension alone for over five years, and she cannot go on to claim that she is entitled to the pension as the deceased left two widows as held by Judge Onyiego, J in HCFA 16 of 2019. She urged the court to dismiss the appeal.
10. This is the first appeal from the decision of the Court below. It was held in the case of Jackson Kaio Kivuva vs Penina Wanjiru Muchene [2019] KEHC 3782 (KLR) stated:-
“This being a first appeal, parties are entitled to and expect a rehearing, re-evaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial, and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.”
11. I note that Onyiego, J found in HCFA No.16 of 2019 between the appellant and the respondent that the respondent was a spouse of the deceased. The said decision was not appealed nor was a review made. In light of that, the respondent is the spouse of the deceased and thus entitled to inherit a share of the estate.
12. As the deceased was polygamous, devolution of his estate is governed by section 40 of the Law of Successions Act. The said section provides as follows:-
“Section 40 (1):-
Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
Section 40 (2):-
The distribution of the personal and household effects and the residue of the net intestate within each house shall then be in accordance with the rules set out in sections 35 to 38.”
13. The Court of Appeal in the case of Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) stated:-
Of consideration is also the discretion of the court in the distribution of the estate in light of the provisions of section 40(1) of the Law of Succession Act.
Section 40(1) of the Law of Succession Act provides for the distribution of the estate of a polygamous deceased person as follows:
“40(1) where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”
In Mary Rono vs Jane Rono & another (supra), Waki, JA in the leading judgment, accepted the proposition that the Court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judicially on sound legal and factual basis. In the same judgment, Omollo JA stated the position more clearly as follows:-
“My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that there must be equality between houses there would have been no need to provide in the section that the number of children in each house be taken into account.
Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work injustice particularly in the case of a young child who is still to be maintained, educated and generally seen through life. If such a child whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied that the Act does not provide for that kind of equality.”
14. In my view, the learned magistrate took into consideration all the relevant matters, including the present circumstances of the parties, where they reside and their legitimate wishes and opted not to upset them.
15. In the case of Mbogo and Another vs Shah [1968] EA 93, the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
16. I agree with the above decision. The decision of the court below was measured and well reasoned. I see no reason to interfere with it.
17. Although it would have been ideal to value the estate, I find the failure not to do so not to be fatal for two reasons. It does not appear to have caused an injustice. Secondly it is not a ground of the appeal.
18. For the foregoing reasons, I find that the appeal lacks merit and is dismissed.
19. Each party shall bear her own costs.
20. Orders accordingly.
Dated and signed at Mombasa this 12th day of May 2024. Delivered virtually through Microsoft TEAMS.
2. Dissatisfied, the appellant appealed to this court seeking to have the allocation of Plot No.MN/1/12830 and pension and retirement benefits to the respondent by the learned magistrate, Hon. Nabibya, on 7th November 2022 in Succession Case No.24 of 2017 set aside and substituted with an order, allocating Plot No. MN/1/12830 to the appellant and other beneficiaries, namely, Gabriel Maina Kamau, Michael Maina Kamau and Jonathan Irungu Kamau, and allocating pension and retirement benefits to the appellant alone and for the costs of the appeal to be in the cause. The appeal is based on the following grounds:-
a) That the learned Hon Magistrate erred in law and, in fact, by allocating Plot No. MN/1/12830 to the respondent alone, excluding the appellant and other beneficiaries; and
b) That the learned Hon Magistrate erred in law by allocating pension and retirement benefits to the respondent.
3. The appeal was canvassed by way of written submissions. Both parties filed written submissions which I shall refer to below.
4. The appellant, through her advocates J. Katisya & Associates Advocates, filed her written submissions dated 1st February 2024. Counsel submitted on two issues, namely, whether the honourable magistrate erred in allocating Plot No. 1/MN/12830/ Bamburi solely to the respondent and whether the Honourable Court erred in allocating pension and retirement benefits at KCB, Kilindini Branch equally.
5. On the first issue, counsel relied on Sections 40, 35(5) and 38 of the Law of Succession Act and submitted the deceased did not distribute his estate amongst his wives prior to his death, and therefore, the estate should be divided equally among the surviving beneficiaries. Section 40 of the act provides that the estate of the deceased be divided equally among the houses in accordance with the number of children per house.
6. Further, the subject property is the largest among all other properties of the deceased and was acquired by the deceased and the appellant during the subsistence of their marriage in 1994 before the respondent got married. The respondent was not blessed with children of her own, and thus, the court’s decision to allocate her entire plot was misinformed. Counsel urged the court to apportion the said property accordingly.
7. On the second issue counsel submitted that the respondent did not contribute to the marriage between the appellant and the deceased to warrant the court to award her a share in the benefits. Counsel urged the court to award the same to the appellant and her children.
8. The respondent, on the other hand, filed her written submissions dated 17th February 2024. She Relied on sections 3(5), 29 and 40 of the Law of Succession Act and submitted that the estate of the deceased, when divided into five units, constitutes a share of 20% for each unit and by right, she is entitled to 20% share of the estate of the deceased. She urged that the plot allocated to her does not constitute more than 20% of the net residual estate of the deceased. She has lived on the said property allocated to her by the deceased for over 10 years with no interruptions and has done major developments thereon. It would be unfair for the same to be allocated to the appellant and her children. She submitted that the learned magistrate did not error in allocating her the same as it forms part of her matrimonial home.
9. On the second issue, she submitted that the appellant enjoyed pension alone for over five years, and she cannot go on to claim that she is entitled to the pension as the deceased left two widows as held by Judge Onyiego, J in HCFA 16 of 2019. She urged the court to dismiss the appeal.
10. This is the first appeal from the decision of the Court below. It was held in the case of Jackson Kaio Kivuva vs Penina Wanjiru Muchene [2019] KEHC 3782 (KLR) stated:-
“This being a first appeal, parties are entitled to and expect a rehearing, re-evaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial, and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.”
11. I note that Onyiego, J found in HCFA No.16 of 2019 between the appellant and the respondent that the respondent was a spouse of the deceased. The said decision was not appealed nor was a review made. In light of that, the respondent is the spouse of the deceased and thus entitled to inherit a share of the estate.
12. As the deceased was polygamous, devolution of his estate is governed by section 40 of the Law of Successions Act. The said section provides as follows:-
“Section 40 (1):-
Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
Section 40 (2):-
The distribution of the personal and household effects and the residue of the net intestate within each house shall then be in accordance with the rules set out in sections 35 to 38.”
13. The Court of Appeal in the case of Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) stated:-
Of consideration is also the discretion of the court in the distribution of the estate in light of the provisions of section 40(1) of the Law of Succession Act.
Section 40(1) of the Law of Succession Act provides for the distribution of the estate of a polygamous deceased person as follows:
“40(1) where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”
In Mary Rono vs Jane Rono & another (supra), Waki, JA in the leading judgment, accepted the proposition that the Court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judicially on sound legal and factual basis. In the same judgment, Omollo JA stated the position more clearly as follows:-
“My understanding of that section is that while the net intestate estate is to be distributed according to houses, each house being treated as a unit, yet the judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that there must be equality between houses there would have been no need to provide in the section that the number of children in each house be taken into account.
Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work injustice particularly in the case of a young child who is still to be maintained, educated and generally seen through life. If such a child whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied that the Act does not provide for that kind of equality.”
14. In my view, the learned magistrate took into consideration all the relevant matters, including the present circumstances of the parties, where they reside and their legitimate wishes and opted not to upset them.
15. In the case of Mbogo and Another vs Shah [1968] EA 93, the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
16. I agree with the above decision. The decision of the court below was measured and well reasoned. I see no reason to interfere with it.
17. Although it would have been ideal to value the estate, I find the failure not to do so not to be fatal for two reasons. It does not appear to have caused an injustice. Secondly it is not a ground of the appeal.
18. For the foregoing reasons, I find that the appeal lacks merit and is dismissed.
19. Each party shall bear her own costs.
20. Orders accordingly.
Dated and signed at Mombasa this 12th day of May 2024. Delivered virtually through Microsoft TEAMS.