REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CIVIL DIVISION
RUTH NJOKI MUNGAI................................................................................APPELLANT
VERSUS
MARGRET NJOKI WAIGI………………………………………1ST RESPONDENT
GEORGE KARANJA WAIGI…………………………………..2ND RESPONDENT
(An Appeal against the Judgment and Orders of the Senior Principal Magistrates Court Limuru (E. Olwande) delivered on the 7h February 2019 in Succesion Cause No. 15 of 2011- In the matter of the Estate of Waigi Kibiru (Deceased))
JUDGMENT
1. This matter relates to the estate of Waigi Kibiru who died intestate on 1st August 1978. From evidence on record the chief letter dated 21st January 2011 disclose the deceased was survived by widow Margaret Njoki Waigi and 5 children. The deceased also left behind one asset parcel land Limuru/Ngecha/793 .
2. Following deceased demise, the Petitioners who are respondents herein filed s Petition on 18th February 2011 for grant of letters of administration in respect of the deceased’s estate. the petitioners then proceeded to filed a summons for confirmation of grant dated 18th October 2011 a2nd a certificate of confirmation of grant was issued on 7th November,2011.
3. On the 19th November 2011, Ruth Njoki Mungai the applicant herein moved to court and filed a summons for revocation. The applicant based her summons on the grounds that the grant of letters of administration was obtained in her absence and based on untrue allegation of fact. The respondents opposed the application vide an affidavit sworn on 28th November 2012 by Margaret Njoki Waigi.
4. Upon hearing the parties, this court issued orders the honourable Judge Musyoka made orders that the administrators be retained and ordered further sed aside confirmation orders made on 1st November 2011 and ordered the cancellation of certificate of confirmation of grant dated 7th November 2011. The court also directed that the court file in SPMCSC NO.15 OF 2011 shall be returned to that court where administrators shall apply for fresh confirmation of grant. The court also grant the applicant liberty to file a protest affidavit.
5. Subsequently, the respondents filed afresh summons for confirmation of grant dated 30th June 2017 while the applicant filed an affidavit of protest dated 8th September 2017 on the grounds that the parcel of the subject of this estate belonged to her father who had two wives being Nduta Kibiru and Kamethu Kibiru, she stated the deceased is her step brother. The applicant stated the parcel of land 793 was being held by the deceased herein in trust.
6. The respondents opposed the affidavit of protest and the protest was heard by viva voce evidence in which both parties adduced their evidence. Upon hearing the parties, the trial court magistrate Hon. E Olwande delivered a ruling dated 7.2.2019 in which she ordered as follows;
“I find that the protestor has not presented sufficient evidence to prove that she is entitled to inherit the estate of the deceased. Having said so,issue number 3 collapse and on issue number 4 I find the protestor has not sufficiently proved that she has locus standi to institute proceedings herein. I therefore proceed to dismiss the protest and I confirm the Grant as earlier issued.”
7. The Appellant RUTH JOKI MUNGAI being dissatisfied with the judgment aforesaid appeals through a memorandum of appeal dated 27th July,2022 against the the said ruling on the following grounds inter-alia: -
i. The learned Magistrate having correctly found that the Appellant was a child of Nduta Kibiru - the 1st wife of Kibiru Waigi - erred in fact and law by making a finding to the effect that she had no locus standi to institute the protest over the distribution of the estate while it was clear that the dispute touched on her father's land.
ii. The learned Magistrate again erred in law and fact because having correctly found that - the father of Waigi Kibiru - who was Kibiru Waigi - the husband of Nduta Kibiru and therefore the father of the protestor - and having again found that if only one child got registered in the property - then he would be holding it in trust for others - then departed from her own findings by concluding that - the protestor was not entitled to a share of the land that was held in the name of Waigi Kibiru.
iii. The learned Magistrate erred in law by placing reliance on extraneous and irrelevant matters which had no relevance to the core issue before her and which resulted in findings had no basis in either fact or law to the prejudice of the Appellant.
iv. The learned Magistrate further erred by her failure to appreciate that at the age of 103 years at the time of giving evidence before her, the Appellants recollection of events and retention of some details such as title numbers and even the names of some people was a natural challenge and which should not have been the basis of making the adverse findings that the Magistrate made against the Appellant and which resulted in a miscarriage of justice as against the Appellant.
v. The learned Magistrate erred in making adverse findings against the Appellant on the basis that she had taken 30 years to lodge any protest which finding did not take into account the fact that the succession Cause before here was filed in court in 2011 and that there was no platform to which any protest could be filed by the Appellant prior to the filing of the Succession Cause.
vi. The learned Magistrate erred by even finding that the Appellant had not filed any issues for determination while they were on record and before the court.
vii. The learned Magistrate erred by disregarding and not giving weight to the evidence adduced before her by the Appellant and which led to wrong findings against the Appellant.
REASONS WHEREFORE the Appellant prays that: -
1) That this Appeal be allowed and the Judgment of the Senior Principal Magistrate of 17th February 2019 be quashed and set aside.
2) That in place thereof - there be a finding that the Appellant is entitled to half share of the land known as Limuru/Ngecha/793.
3) The Respondents do pay the costs of this Appeal and in the Lower Court.
8. By consent of parties this appeal was heard by way of written submissions. The parties filed their respective submissions which I have carefully analyzed and considered together with case law in support.
9. I have perused the lower court record, considered the evidence tendered and parties’ submission. As the first appellate court, this court is mandated to relook at the evidence presented in trial, re-evaluate it and arrive at its own conclusion. (See Oneko v Republic) (1972)EA 132)
10. In my view the following issues arise for determination:
i. Whether appellant had the legal capacity to bring a claim against the deceased’ estate.
ii. Whether the deceased held the property land parcel 793 in trust for the appellant
iii. Whether the protestor the appellant herein is entitled to a portion of land parcel 793
11. The contest revolves around land parcel going by Title No Limuru/Ngecha/793 left behind by Deceased .The appellant has faulted the trial court that in finding that she locus standi to institute proceedings herein. Locus standi is clearly set out under section 29 of the Law of Succession Act.
12. The appellant has argued that the suit property belonged to her father who had 2 wives namely Nduta Kiburi and Kamethu Kibiru. The appellant submitted her mother was 1st wife and the deceased herein were son of 2nd wife.
13. The appellant’s case is that the deceased subdivided the original parcel 207 to 791,792 and 793. It is the appellant’s case that the parcel number 793 was being held in trust by the deceased for the two houses. She submitted that her mother’s house has not been given any portion from the estate who is also deceased.
14. I have analyzed the evidence on record and I note that the respondents while filing the grant of letters of administration relied on Chief Letter dated 21.1.2011 which set out the beneficiaries of the estate of the deceased. This court notes that the same does not mention the appellant as a beneficiary of the deceased.
15. A certificate of official search on the Title , accompanying the application for Grant of letters of administration dated 4.2.2011 25.4.2016 shows that the said property is held absolutely by Waigi Kibiru and the same was registered on 18.1.1978.
16. During cross examination before trial court the appellant herein admitted that she does not know the parcel of land they are ligating on and that she does not have any document to prove she was the daughter of the deceased herein.
17. I therefore agree with the trial magistrate finding that the appellant did not adduce any evidence to prove that she is entitled to inherit deceased estate and she therefore lack locus standi to these proceedings. She was not a dependant and she did not prove the trust she alleges existed. The trial court analyzed the evidence and applied the proper legal principles.
18. Having found the first issue in the negative I find no reason to determine the other issues. The appeal is herby dismissed in entirety.
Costs awarded to the respondent asessed at Ksh 40,000//
Dated signed and delivered virtually this 30th day of July 2024
WENDY KAGENDO
JUDGE