1. This appeal arises from the judgment of the lower court in which the learned trial Magistrate (Hon. E Muriuki SPM) distributed the estate of the late Frederick Stephen Mwangi Wanjii alias Fredrick Samuel Mwangi Wanjie.
2. A brief background to the appeal is that the deceased died intestate on 30th December 2019. He was a polygamist. He was survived by two wives namely, Faith Wanjiku Wanjii (hereinafter the 1st wife) and Phyllis Muthoni Mwangi (the 2nd wife). The first wife had 7 children while the 2nd wife was blessed with four children.
3. Upon the death of the deceased, his two widows were jointly appointed as administrators of his estate in a grant of letters of administration issued on 18th November 2020.
4. On 6th June 2021, the 1st wife filed a summons for confirmation of the grant. She identified the assets comprising the deceased’s estate and made proposals on how they were to be distributed to his beneficiaries. According to the applicant, the properties available for distribution were the following;
1) Loc. 8/Theiri/289- 1.57 Ha
2) Loc. 8/Theiri/752- 0.40 Ha
3) Loc. 8/Gitura/Kairichi /471 - 0.45Ha
4) Loc. 8/Theiri/1200 – 0.260Ha
5) Plot No. 61 B Murarandia market
6) Plot No. D3021 –Dandora estate
7) Cash in Equity Bank, Unaitas Bank, Amica savings and funds in Mpesa phone No. 0711536603.
8) Motor vehicle registration No. KCR 461K
5. In response to the summons, the 2nd wife (the protestor) filed an affidavit of protest dated 6th September 2021 challenging the distribution proposed by the applicant (1st wife). In her affidavit of protest, the protestor averred that prior to his death, the deceased had given her land parcel No. Loc.8/Theri /289 and Plot No. D 3021 Dandora Estate and she ought therefore to inherit the two properties absolutely; that she had contributed to the purchase of ¾’s of Land Parcel No. Loc. 8/Theri /752 which she was entitled to and that the remaining ¼ should be shared equally by his two widows. She also claimed that she should exclusively inherit Plot No. 61B Murarandia since it was her matrimonial home. She also claimed entitlement to motor vehicle registration No. KCR 461K.
6. In addition, the protestor urged that she be allocated tea proceeds deposited in the bank and Sacco accounts stated in paragraph 4 and the balance of funds in those accounts to be shared by the two widows.
She also claimed that when petitioning for grant of letters of administration, the applicant had left out two properties belonging to the deceased, namely, Plot No. Loc. 8/Theri /865/54 A and the Kayole Plot which was jointly owned by the deceased and his first wife. She proposed that the two properties be allocated to the first wife. She did not object to the distribution of Loc.8/Gitura/Karirichi/471 and Loc.8 /Their /1200 as proposed by the applicant in the summons for confirmation of grant.
7. It is evident from the record that before the protested summons was set down for hearing, the applicant passed on. She was substituted by her son, Samuel Maina Mwangi, the appellant herein.
Thereafter, the protested summons was heard by way of viva voce evidence. At the close of the hearing, the learned trial magistrate rendered his judgment on 27th June 2023.
8. In his judgment, the learned trial magistrate largely adopted the mode of distribution suggested by the protestor and distributed the deceased’s Estate as follows;
“…..Loc. 8/Gitura/Kairichi/471 to be allocated to the 1st wife and her children
Loc. 8/Theri/1200 to be allocated to the 1st wife and her children
Loc. 8/Theri/289 & 752 to be allocated to the 2nd wife and her children.
Dandora plot to the 2nd wife and her children
Kahatia plot to the 2nd wife and her children
Motor vehicle registration No. KCR 461K to be sold and the proceeds shared equally between the two houses. Cash held in Equity, Unaitas, Amica and Mpesa to be distributed equally between the two houses subject to deduction of the protestors tea proceeds deposited in Equity and Unaitas, Amica Sacco, Equity Bank and KTDA should be shared equally between the two houses”
9. The appellant was dissatisfied with the trial court’s decision on distribution hence this appeal. In his memorandum of appeal dated 4th July 2023, the appellant advanced eight grounds of appeal in which he faulted the learned trial magistrate for having misdirected himself on what formed the free estate of a deceased person and the law relating to gift inter vivos. The appellant also complained that the learned trial magistrate erred in law by: failing to analyse the evidence on record and thereby arrived at the wrong decision; ignoring express provisions of the law regarding distribution of Estates of persons who died intestate and injudiciously favouring one party; failing to consider that Estates yielding income ought to be preserved and their income distributed by the court. According to the appellant, the impugned judgment was not in tandem with the provisions of the Law of Succession Act and was partial in all
respects.
10. Based on the above grounds, the appellant urged this court to set aside the trial court’s judgment and to redistribute the deceased’s Estate in accordance with Section 40 of the Law of Succession Act . He also prayed that an order be made compelling the respondent to deposit the income derived from Plot D 3021 Dandora (the Dandora plot) and Plot No. 61B Kahatia market (Kahatia plot) for distribution and that costs of the appeal be borne by the respondent.
11. The appeal was prosecuted by way of written submissions which both parties duly filed. The written submissions were highlighted before me on 6th November 2025 by counsel on record for both parties. In the oral highlights, learned counsel Ms. Waithera Mwan gi represented the appellant while learned counsel Ms. Wangechi Gathua represented the respondent.
12. Having carefully considered the grounds of appeal, the evidence on record as well as the parties written and oral submissions, I find that the key issue that presents itself for my determination in this appeal is whether the learned trial magistrate erred in law or fact in arriving at his decision on distribution of the deceased’s Estate.
13. A reading of the trial court’s judgment shows clearly that before embarking on the process of distribution of the Estate, the learned trial magistrate did not make a specific finding regarding what comprised the deceased’s Estate in order to establish what was available for distribution.
14. Further, it is evident from the record that in arriving at his decision, the learned trial magistrate failed to correctly evaluate and appreciate the legal significance of the evidence adduced by the protestor (PW4) and the appellant regarding assets which, in their view, belonged to the deceased’s Estate.
15. In her evidence, the protestor relied on her witness statements dated 7th April 2022 and 7th June 2022 in which she claimed that she was entitled to exclusively inherit land parcel No. 8 /Their /289 and Plot No. D 3021 Dandora Estate because the deceased had gifted them to her prior to his death. She also testified that she was entitled to solely inherit Plot No. 61B because it used to be her matrimonial home.
16. It is also noteworthy that in their evidence, both the protestor and the appellant confirmed that Plot No. Loc. 8/Theri /Kahatia 549 was registered in the name of the deceased’s father and not in the deceased’s name and that Plot No. Kayole C3-169 was in the joint names of the deceased and his first wife.
17. Given the above evidence, the learned trial magistrate ought to have addressed his mind to the question of what in law constituted a deceased person’s Estate before undertaking the task of distribution to avoid the danger of distributing assets that did not belong to the deceased’s Estate.
18. Section 3 of the Law of Succession Act defines an Estate as “ the free property of a deceased person” . The same provision proceeds to define free property in relation to a deceased person as “ the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death”
19. In this case, there was undisputed evidence from the protestor and the appellant that land parcel Number No. Loc. 8 /Kahatia Theri /865/ 54A was not the property of the deceased as it was registered in his father’s name. Consequently, this was not property which the deceased could have freely disposed off during his lifetime. The said property did not therefore form part of his Estate.
20. Further, the protestor admitted the appellant’s claim that the Kayole plot was registered in the joint names of the deceased and his first wife. This claim was also supported by a copy of a document from the Nairobi City Council Housing Development Department contained on page 86 of the Record of appeal. There was also evidence in the form of a certificate of official search dated 8th July 2020 which proved that land parcel No. Loc. 8 /Their /1200 was jointly registered in the name of the deceased and three other people. This parcel of land having been jointly owned by the deceased and other people was not part of the deceased’s Estate and was not available for distribution in the light of the principle of survivorship which I will advert to shortly.
21. Had the learned trial magistrate addressed his mind to the law regarding what assets constituted a deceased’s persons Estate and properly evaluated the evidence on record, he would have found that the evidence established as a fact that the Kayole plot and land Parcel No. Lo. 8/Theri/1200 was not solely owned by the deceased and they did not therefore constitute his Estate.
22. I agree with the appellant’s submissions that the learned trial magistrate’s finding that no evidence had been adduced to prove that the Kayole Plot was jointly owned by the deceased and his first wife was erroneous as it was against the evidence on record.
23. Turning now to what happens to jointly owned property when one of the joint owners die, the law is that upon death of one of the joint owners, the property’s ownership automatically passes to the surviving owner or owners by virtue of the principle of survivorship. The principle of survivorship was well articulated in the case of the Estate of Joseph Kipkemoi Limo (Deceased) (2025) KEHC 1623 (KLR) in which the court stated as follows;
“ The principle of survivorship also known in law as jus accrescendi, stands as one of the foundational doctrines governing joint tenancy in property law. This principle establishes that upon the death of one joint tenant, their interest automatically and immediately passes to the surviving joint tenant (s) operating independently of any testamentary disposition or rules of intestacy. The doctrine’s application is not discretionary but automatic, representing a defining characteristic that distinguishes joint tenancy from other forms of co-ownership. This implies that the property is not up for distribution as the surviving tenant is now the new owner. The property will only be up for distribution upon the demise of the new sole owner, and even then, this property would only be the subject of the Estate of this new owner. This is the hallmark of the principle of jus accresendi which provides for the right of survivorship”
See also: re Estate of Gwonda Kebate, Kebate Kebate, Ondande Kebate & Onchere Kebate (Deceased) (2024) KECA 784 (KL R)
24. Applying the above principle to this case, upon the death of the deceased, his proprietary interest in the Kayole Plot automatically passed to the surviving tenant who was his first wife while that in Loc. 8/Theri /1200 passed to the other three surviving joint tenants.
25. From the foregoing, it readily becomes obvious that the learned trial magistrate erred in law when he included the above two properties as well as parcel No. Loc. 8 /Their /865/54 A in the assets comprising the deceased’s Estate and proceeded to distribute them.
26. From the evidence on record, the only assets that belonged to the deceased’s estate which were available for distribution were as follows;
1. Loc. 8/Theri/289
2. Loc. 8/Their/752
3. Loc. 8/Gitura- Kairichi/471
4. Plot No. 61B Murarandia market
5. Plot No. D3021 – Dandora estate
6. Motor vehicle registration No. KCR 461K
7. Funds held in Equity Bank, Unaitas, Amica Sacco, and Mpesa account in phone No. 0711546603.
27. Although shares in Githambo Tea Factory Co. Ltd were not included in the inventory of assets belonging to the deceased’s Estate, there is evidence from the commercial share certificate dated 16th January 2020 contained on page 87 of the record of appeal proving that the deceased owned 12,112 shares in the above company. It is thus my finding that the said shares formed part of his estate.
28. Having identified the assets in the deceased’s Estate, the next question that arises for my determination is whether the distribution done by the trial court aligned with the relevant provisions of the Law of Succession Act.
29. The appellant argued in his submissions that the learned trial magistrate wrongly invoked the provisions of Section 142 of the Law of Succession Act which provides that during distribution, gifts made by a deceased person inter vivos (during his lifetime) to a child, grandchild or house must be taken into account when determining the share of the net intestate estate to be allocated to the gifted beneficiary.
30. The learned trial magistrate appears to have based his decision on the protestors claim that the deceased had in his lifetime gifted her with land parcel No. Loc. 8/Theri /289, Plot No. D3021 Dandora Estate and Plot No. 61B Murarandia, (Kahatia plot). However, the protestor did not adduce any evidence to prove when or how the deceased had gifted her with the above assets. She did not also avail any evidence to confirm that the deceased had made any overt acts demonstrating his intention to gift her with the aforesaid properties.
31. The law is that a party claiming to be the recipient of a gift inter vivos must establish by credible evidence that the conduct of the donor was intended to grant him or her the right to enforce the gift by, for instance, execution of some instruments that would pass the property in question to the donee.
32. There is a plethora of authorities which enumerates the requirements a gift inter vivos must satisfy in order to be considered valid. I do not find it necessary to rehash them here but I am more persuaded by the authority of re Estate of Chesimbili Sindani (deceased) (2021) eKLR in which Musyoka J held as follows;
“ ……the principle that emerges is that any gift inter vivos should be backed by some memorandum in writing, and the gift would be complete once title to the subject property is transferred to the name of the beneficiary of the gift. Difficulties arise where transfer is not effected to the beneficiaries before the death of the deceased, in which case, such property would remain the free property of the deceased, available for distribution at confirmation, the argument being that such gift was founded on a mere promise which the deceased did not carry through prior to his death. Where some preliminary steps were taken towards effectuating his promise, so that all what remained after the death of the deceased was mere registration of the property in the name of the beneficiary, it would be presumed that the deceased intended to make a gift inter vivos. The mere fact of being shown a piece of land and given permission to occupy and use it, without more, is not adequate proof for a gift inter vivos. The deceased, as registered proprietor of the land in question, would have the right to licence a person to occupy the land and use it. A child who has been shown a piece of land to build on and to till, is not in the shoes of an owner, but a mere licencee to ownership, if anything the death of the proprietor could mean that the licence comes to an end, and the licencee continues to occupy and work the land at the mercy of the administrator”.
33. In the absence of evidence demonstrating that the deceased had gifted any of his two houses or any of his children with any of his assets during his lifetime, I am in agreement with the appellant’s submissions that Section 142 of the Law of Succession Act was not applicable in this case. In applying the above provision, the learned trial magistrate misdirected himself and consequently arrived at an erroneous decision.
34. In addition, it is clear from the trial courts judgement that the learned trial magistrate correctly made a finding that the deceased died intestate and that he was a polygamist with two households but despite this acknowledgement, the learned trial magistrate went on a tangent during distribution and failed to apply the law applicable to distribution Estates involving polygamists. The learned trial magistrate ought to have distributed the Estate in accordance with S ection 40 of the Law of Succession Act which prescribes the mode of distribution of intestate Estates in which the deceased persons were polygamous.
35. Section 40 above provides that where a deceased died intestate and was polygamous, his estate ought to be divided among the houses according to the number of children adding any surviving wife as an additional unit to the number of children. Thereafter, the distribution in each house would follow the rules set out in Section 35 to Section 38 of the Law of Succession Act.
36. Although the respondent admitted in her submissions that Section 40 of the Law of Succession Ac t was the law applicable to Estates like that of the deceased in this case, she supported the trial court’s decision arguing that courts had discretion when distributing estates of polygamous deceased persons to take into account special circumstances in order to ensure equitable and fair distribution of the estate. For this preposition, reliance was placed on the Court of Appeal decision in Scolastica Ndululu Surau V Agnes Nthenya Suva (2019) eKLR.
37. Whereas I agree with the respondent’s submission, I find that in this case, the respondent failed to adduce any evidence disclosing existence of special circumstances that would have justified a departure from the prescriptions of Section 40 of the Law of Succession Act. She did not, for instance, avail evidence to prove her claim that she had substantially contributed to the purchase of land Parcel No. Loc.8/ Theri /752. The court’s discretion cannot be exercised on the basis of mere assertions which are not substantiated by evidence.
38. Having found as I have hereinabove, I have no doubt in my mind that the learned trial magistrate grossly misdirected himself and fell into error when he chose to adopt the mode of distribution proposed by the respondent instead of distributing the Estate in accordance with the applicable law which is Section 40 of the Law of Succession Act.
39. For all the foregoing reasons, I find merit in this appeal and it is hereby allowed. The trial court’s decision in the judgment dated 27th June 2023 is hereby set aside. The certificate of confirmation of grant dated 27th September 2023 is consequently cancelled.
40. Having set aside the trial court’s decision, it now behooves this court, being the first appellate court, to step into the shoes of the trial court and distribute the deceased’s Estate afresh.
41. As noted earlier, there is undisputed evidence that the deceased was survived in the first house by the 1st wife who is now deceased and seven children. In the second house, he was survived by a widow who is the respondent herein and four children. Applying Section 40 of the Law of Succession Act, the deceased’s Estate comprising of the assets specified in paragraph 26 and 27 shall be distributed among his two houses in the ratio of 7:5.
42. Considering that about three years have elapsed between now and the time the trial court made its decision on distribution, the shares allocated to each house shall take into account any physical structures or developments that may have been made by either the respondent and her children or by children of the first house on the parcels of land comprising the Estate.
43. The appellant had also prayed that the respondent be ordered to deposit in court income derived from plot D3021 (Dandora plot) and plot 61B Kahatia market for distribution. Although there is no dispute that the respondent started collecting income from the above assets after the deceased’s demise, considering that there is no evidence regarding the amount of income so far generated by the assets, I find that making such an order may not serve any useful purpose. Instead, I direct that the two co-administrators shall open an Estate Account in any bank of their choice where income from the aforesaid assets will henceforth be deposited and thereafter shared in the ratio of 7: 5.
Lastly, motor vehicle registration number KCR 461K if not already sold shall be sold and its proceeds shall be shared in the same ratio.
44. As this is a family dispute, I will not make any order as to costs.
45. It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 29th day of April 2026
2. A brief background to the appeal is that the deceased died intestate on 30th December 2019. He was a polygamist. He was survived by two wives namely, Faith Wanjiku Wanjii (hereinafter the 1st wife) and Phyllis Muthoni Mwangi (the 2nd wife). The first wife had 7 children while the 2nd wife was blessed with four children.
3. Upon the death of the deceased, his two widows were jointly appointed as administrators of his estate in a grant of letters of administration issued on 18th November 2020.
4. On 6th June 2021, the 1st wife filed a summons for confirmation of the grant. She identified the assets comprising the deceased’s estate and made proposals on how they were to be distributed to his beneficiaries. According to the applicant, the properties available for distribution were the following;
1) Loc. 8/Theiri/289- 1.57 Ha
2) Loc. 8/Theiri/752- 0.40 Ha
3) Loc. 8/Gitura/Kairichi /471 - 0.45Ha
4) Loc. 8/Theiri/1200 – 0.260Ha
5) Plot No. 61 B Murarandia market
6) Plot No. D3021 –Dandora estate
7) Cash in Equity Bank, Unaitas Bank, Amica savings and funds in Mpesa phone No. 0711536603.
8) Motor vehicle registration No. KCR 461K
5. In response to the summons, the 2nd wife (the protestor) filed an affidavit of protest dated 6th September 2021 challenging the distribution proposed by the applicant (1st wife). In her affidavit of protest, the protestor averred that prior to his death, the deceased had given her land parcel No. Loc.8/Theri /289 and Plot No. D 3021 Dandora Estate and she ought therefore to inherit the two properties absolutely; that she had contributed to the purchase of ¾’s of Land Parcel No. Loc. 8/Theri /752 which she was entitled to and that the remaining ¼ should be shared equally by his two widows. She also claimed that she should exclusively inherit Plot No. 61B Murarandia since it was her matrimonial home. She also claimed entitlement to motor vehicle registration No. KCR 461K.
6. In addition, the protestor urged that she be allocated tea proceeds deposited in the bank and Sacco accounts stated in paragraph 4 and the balance of funds in those accounts to be shared by the two widows.
She also claimed that when petitioning for grant of letters of administration, the applicant had left out two properties belonging to the deceased, namely, Plot No. Loc. 8/Theri /865/54 A and the Kayole Plot which was jointly owned by the deceased and his first wife. She proposed that the two properties be allocated to the first wife. She did not object to the distribution of Loc.8/Gitura/Karirichi/471 and Loc.8 /Their /1200 as proposed by the applicant in the summons for confirmation of grant.
7. It is evident from the record that before the protested summons was set down for hearing, the applicant passed on. She was substituted by her son, Samuel Maina Mwangi, the appellant herein.
Thereafter, the protested summons was heard by way of viva voce evidence. At the close of the hearing, the learned trial magistrate rendered his judgment on 27th June 2023.
8. In his judgment, the learned trial magistrate largely adopted the mode of distribution suggested by the protestor and distributed the deceased’s Estate as follows;
“…..Loc. 8/Gitura/Kairichi/471 to be allocated to the 1st wife and her children
Loc. 8/Theri/1200 to be allocated to the 1st wife and her children
Loc. 8/Theri/289 & 752 to be allocated to the 2nd wife and her children.
Dandora plot to the 2nd wife and her children
Kahatia plot to the 2nd wife and her children
Motor vehicle registration No. KCR 461K to be sold and the proceeds shared equally between the two houses. Cash held in Equity, Unaitas, Amica and Mpesa to be distributed equally between the two houses subject to deduction of the protestors tea proceeds deposited in Equity and Unaitas, Amica Sacco, Equity Bank and KTDA should be shared equally between the two houses”
9. The appellant was dissatisfied with the trial court’s decision on distribution hence this appeal. In his memorandum of appeal dated 4th July 2023, the appellant advanced eight grounds of appeal in which he faulted the learned trial magistrate for having misdirected himself on what formed the free estate of a deceased person and the law relating to gift inter vivos. The appellant also complained that the learned trial magistrate erred in law by: failing to analyse the evidence on record and thereby arrived at the wrong decision; ignoring express provisions of the law regarding distribution of Estates of persons who died intestate and injudiciously favouring one party; failing to consider that Estates yielding income ought to be preserved and their income distributed by the court. According to the appellant, the impugned judgment was not in tandem with the provisions of the Law of Succession Act and was partial in all
respects.
10. Based on the above grounds, the appellant urged this court to set aside the trial court’s judgment and to redistribute the deceased’s Estate in accordance with Section 40 of the Law of Succession Act . He also prayed that an order be made compelling the respondent to deposit the income derived from Plot D 3021 Dandora (the Dandora plot) and Plot No. 61B Kahatia market (Kahatia plot) for distribution and that costs of the appeal be borne by the respondent.
11. The appeal was prosecuted by way of written submissions which both parties duly filed. The written submissions were highlighted before me on 6th November 2025 by counsel on record for both parties. In the oral highlights, learned counsel Ms. Waithera Mwan gi represented the appellant while learned counsel Ms. Wangechi Gathua represented the respondent.
12. Having carefully considered the grounds of appeal, the evidence on record as well as the parties written and oral submissions, I find that the key issue that presents itself for my determination in this appeal is whether the learned trial magistrate erred in law or fact in arriving at his decision on distribution of the deceased’s Estate.
13. A reading of the trial court’s judgment shows clearly that before embarking on the process of distribution of the Estate, the learned trial magistrate did not make a specific finding regarding what comprised the deceased’s Estate in order to establish what was available for distribution.
14. Further, it is evident from the record that in arriving at his decision, the learned trial magistrate failed to correctly evaluate and appreciate the legal significance of the evidence adduced by the protestor (PW4) and the appellant regarding assets which, in their view, belonged to the deceased’s Estate.
15. In her evidence, the protestor relied on her witness statements dated 7th April 2022 and 7th June 2022 in which she claimed that she was entitled to exclusively inherit land parcel No. 8 /Their /289 and Plot No. D 3021 Dandora Estate because the deceased had gifted them to her prior to his death. She also testified that she was entitled to solely inherit Plot No. 61B because it used to be her matrimonial home.
16. It is also noteworthy that in their evidence, both the protestor and the appellant confirmed that Plot No. Loc. 8/Theri /Kahatia 549 was registered in the name of the deceased’s father and not in the deceased’s name and that Plot No. Kayole C3-169 was in the joint names of the deceased and his first wife.
17. Given the above evidence, the learned trial magistrate ought to have addressed his mind to the question of what in law constituted a deceased person’s Estate before undertaking the task of distribution to avoid the danger of distributing assets that did not belong to the deceased’s Estate.
18. Section 3 of the Law of Succession Act defines an Estate as “ the free property of a deceased person” . The same provision proceeds to define free property in relation to a deceased person as “ the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death”
19. In this case, there was undisputed evidence from the protestor and the appellant that land parcel Number No. Loc. 8 /Kahatia Theri /865/ 54A was not the property of the deceased as it was registered in his father’s name. Consequently, this was not property which the deceased could have freely disposed off during his lifetime. The said property did not therefore form part of his Estate.
20. Further, the protestor admitted the appellant’s claim that the Kayole plot was registered in the joint names of the deceased and his first wife. This claim was also supported by a copy of a document from the Nairobi City Council Housing Development Department contained on page 86 of the Record of appeal. There was also evidence in the form of a certificate of official search dated 8th July 2020 which proved that land parcel No. Loc. 8 /Their /1200 was jointly registered in the name of the deceased and three other people. This parcel of land having been jointly owned by the deceased and other people was not part of the deceased’s Estate and was not available for distribution in the light of the principle of survivorship which I will advert to shortly.
21. Had the learned trial magistrate addressed his mind to the law regarding what assets constituted a deceased’s persons Estate and properly evaluated the evidence on record, he would have found that the evidence established as a fact that the Kayole plot and land Parcel No. Lo. 8/Theri/1200 was not solely owned by the deceased and they did not therefore constitute his Estate.
22. I agree with the appellant’s submissions that the learned trial magistrate’s finding that no evidence had been adduced to prove that the Kayole Plot was jointly owned by the deceased and his first wife was erroneous as it was against the evidence on record.
23. Turning now to what happens to jointly owned property when one of the joint owners die, the law is that upon death of one of the joint owners, the property’s ownership automatically passes to the surviving owner or owners by virtue of the principle of survivorship. The principle of survivorship was well articulated in the case of the Estate of Joseph Kipkemoi Limo (Deceased) (2025) KEHC 1623 (KLR) in which the court stated as follows;
“ The principle of survivorship also known in law as jus accrescendi, stands as one of the foundational doctrines governing joint tenancy in property law. This principle establishes that upon the death of one joint tenant, their interest automatically and immediately passes to the surviving joint tenant (s) operating independently of any testamentary disposition or rules of intestacy. The doctrine’s application is not discretionary but automatic, representing a defining characteristic that distinguishes joint tenancy from other forms of co-ownership. This implies that the property is not up for distribution as the surviving tenant is now the new owner. The property will only be up for distribution upon the demise of the new sole owner, and even then, this property would only be the subject of the Estate of this new owner. This is the hallmark of the principle of jus accresendi which provides for the right of survivorship”
See also: re Estate of Gwonda Kebate, Kebate Kebate, Ondande Kebate & Onchere Kebate (Deceased) (2024) KECA 784 (KL R)
24. Applying the above principle to this case, upon the death of the deceased, his proprietary interest in the Kayole Plot automatically passed to the surviving tenant who was his first wife while that in Loc. 8/Theri /1200 passed to the other three surviving joint tenants.
25. From the foregoing, it readily becomes obvious that the learned trial magistrate erred in law when he included the above two properties as well as parcel No. Loc. 8 /Their /865/54 A in the assets comprising the deceased’s Estate and proceeded to distribute them.
26. From the evidence on record, the only assets that belonged to the deceased’s estate which were available for distribution were as follows;
1. Loc. 8/Theri/289
2. Loc. 8/Their/752
3. Loc. 8/Gitura- Kairichi/471
4. Plot No. 61B Murarandia market
5. Plot No. D3021 – Dandora estate
6. Motor vehicle registration No. KCR 461K
7. Funds held in Equity Bank, Unaitas, Amica Sacco, and Mpesa account in phone No. 0711546603.
27. Although shares in Githambo Tea Factory Co. Ltd were not included in the inventory of assets belonging to the deceased’s Estate, there is evidence from the commercial share certificate dated 16th January 2020 contained on page 87 of the record of appeal proving that the deceased owned 12,112 shares in the above company. It is thus my finding that the said shares formed part of his estate.
28. Having identified the assets in the deceased’s Estate, the next question that arises for my determination is whether the distribution done by the trial court aligned with the relevant provisions of the Law of Succession Act.
29. The appellant argued in his submissions that the learned trial magistrate wrongly invoked the provisions of Section 142 of the Law of Succession Act which provides that during distribution, gifts made by a deceased person inter vivos (during his lifetime) to a child, grandchild or house must be taken into account when determining the share of the net intestate estate to be allocated to the gifted beneficiary.
30. The learned trial magistrate appears to have based his decision on the protestors claim that the deceased had in his lifetime gifted her with land parcel No. Loc. 8/Theri /289, Plot No. D3021 Dandora Estate and Plot No. 61B Murarandia, (Kahatia plot). However, the protestor did not adduce any evidence to prove when or how the deceased had gifted her with the above assets. She did not also avail any evidence to confirm that the deceased had made any overt acts demonstrating his intention to gift her with the aforesaid properties.
31. The law is that a party claiming to be the recipient of a gift inter vivos must establish by credible evidence that the conduct of the donor was intended to grant him or her the right to enforce the gift by, for instance, execution of some instruments that would pass the property in question to the donee.
32. There is a plethora of authorities which enumerates the requirements a gift inter vivos must satisfy in order to be considered valid. I do not find it necessary to rehash them here but I am more persuaded by the authority of re Estate of Chesimbili Sindani (deceased) (2021) eKLR in which Musyoka J held as follows;
“ ……the principle that emerges is that any gift inter vivos should be backed by some memorandum in writing, and the gift would be complete once title to the subject property is transferred to the name of the beneficiary of the gift. Difficulties arise where transfer is not effected to the beneficiaries before the death of the deceased, in which case, such property would remain the free property of the deceased, available for distribution at confirmation, the argument being that such gift was founded on a mere promise which the deceased did not carry through prior to his death. Where some preliminary steps were taken towards effectuating his promise, so that all what remained after the death of the deceased was mere registration of the property in the name of the beneficiary, it would be presumed that the deceased intended to make a gift inter vivos. The mere fact of being shown a piece of land and given permission to occupy and use it, without more, is not adequate proof for a gift inter vivos. The deceased, as registered proprietor of the land in question, would have the right to licence a person to occupy the land and use it. A child who has been shown a piece of land to build on and to till, is not in the shoes of an owner, but a mere licencee to ownership, if anything the death of the proprietor could mean that the licence comes to an end, and the licencee continues to occupy and work the land at the mercy of the administrator”.
33. In the absence of evidence demonstrating that the deceased had gifted any of his two houses or any of his children with any of his assets during his lifetime, I am in agreement with the appellant’s submissions that Section 142 of the Law of Succession Act was not applicable in this case. In applying the above provision, the learned trial magistrate misdirected himself and consequently arrived at an erroneous decision.
34. In addition, it is clear from the trial courts judgement that the learned trial magistrate correctly made a finding that the deceased died intestate and that he was a polygamist with two households but despite this acknowledgement, the learned trial magistrate went on a tangent during distribution and failed to apply the law applicable to distribution Estates involving polygamists. The learned trial magistrate ought to have distributed the Estate in accordance with S ection 40 of the Law of Succession Act which prescribes the mode of distribution of intestate Estates in which the deceased persons were polygamous.
35. Section 40 above provides that where a deceased died intestate and was polygamous, his estate ought to be divided among the houses according to the number of children adding any surviving wife as an additional unit to the number of children. Thereafter, the distribution in each house would follow the rules set out in Section 35 to Section 38 of the Law of Succession Act.
36. Although the respondent admitted in her submissions that Section 40 of the Law of Succession Ac t was the law applicable to Estates like that of the deceased in this case, she supported the trial court’s decision arguing that courts had discretion when distributing estates of polygamous deceased persons to take into account special circumstances in order to ensure equitable and fair distribution of the estate. For this preposition, reliance was placed on the Court of Appeal decision in Scolastica Ndululu Surau V Agnes Nthenya Suva (2019) eKLR.
37. Whereas I agree with the respondent’s submission, I find that in this case, the respondent failed to adduce any evidence disclosing existence of special circumstances that would have justified a departure from the prescriptions of Section 40 of the Law of Succession Act. She did not, for instance, avail evidence to prove her claim that she had substantially contributed to the purchase of land Parcel No. Loc.8/ Theri /752. The court’s discretion cannot be exercised on the basis of mere assertions which are not substantiated by evidence.
38. Having found as I have hereinabove, I have no doubt in my mind that the learned trial magistrate grossly misdirected himself and fell into error when he chose to adopt the mode of distribution proposed by the respondent instead of distributing the Estate in accordance with the applicable law which is Section 40 of the Law of Succession Act.
39. For all the foregoing reasons, I find merit in this appeal and it is hereby allowed. The trial court’s decision in the judgment dated 27th June 2023 is hereby set aside. The certificate of confirmation of grant dated 27th September 2023 is consequently cancelled.
40. Having set aside the trial court’s decision, it now behooves this court, being the first appellate court, to step into the shoes of the trial court and distribute the deceased’s Estate afresh.
41. As noted earlier, there is undisputed evidence that the deceased was survived in the first house by the 1st wife who is now deceased and seven children. In the second house, he was survived by a widow who is the respondent herein and four children. Applying Section 40 of the Law of Succession Act, the deceased’s Estate comprising of the assets specified in paragraph 26 and 27 shall be distributed among his two houses in the ratio of 7:5.
42. Considering that about three years have elapsed between now and the time the trial court made its decision on distribution, the shares allocated to each house shall take into account any physical structures or developments that may have been made by either the respondent and her children or by children of the first house on the parcels of land comprising the Estate.
43. The appellant had also prayed that the respondent be ordered to deposit in court income derived from plot D3021 (Dandora plot) and plot 61B Kahatia market for distribution. Although there is no dispute that the respondent started collecting income from the above assets after the deceased’s demise, considering that there is no evidence regarding the amount of income so far generated by the assets, I find that making such an order may not serve any useful purpose. Instead, I direct that the two co-administrators shall open an Estate Account in any bank of their choice where income from the aforesaid assets will henceforth be deposited and thereafter shared in the ratio of 7: 5.
Lastly, motor vehicle registration number KCR 461K if not already sold shall be sold and its proceeds shall be shared in the same ratio.
44. As this is a family dispute, I will not make any order as to costs.
45. It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 29th day of April 2026