Introduction
1. This Appeal arises from the Ruling and Order by Hon. T.B. Nyangena dated 14th October 2020 in the Kiambu CMCC No. 287 of 2011 in which the trial magistrate directed that the estate of Francis Gitau Karuru (deceased), comprising the parcel of land known as L.R. KABETE/KIBICHIKU/1395 be distributed among the Children and the surviving wife equally.
2. The factual background of the matter is that by an application dated 8th November 2018, the Respondents herein sought the revocation of the confirmed letters of administration issued to the Appellant on 16th May 2018 on the basis that the grant was obtained without the involvement of all beneficiaries and Applicants from both houses of the deceased.
3. The deceased (Francis Gitau Karuru) had two wives namely, Gathoni Gitau -deceased (1st house) and Grace Muthoni Gitau (2nd house). The 1st house had four children whilst the 2nd house had eight children.
4. The Appellant is the daughter in law to the deceased from the 1st house and wife to Joseph Kamau Gitau (deceased) who was the first born to the deceased from the 1st house.
5. On 14th October 2020, the trial court delivered its Ruling on the Respondents’ application dated 8th November 2018 and directed that the parcel of land known as L.R. KABETE/KIBICHIKU/1395 being the only known estate of Francis Gitau Karuru (deceased), be distributed equally among the deceased children and the surviving wife.
The appeal
6. Aggrieved by the lower court’s decision, the Appellant filed the instant Appeal vide her Memorandum of Appeal dated 22nd October 2020 raising ten (10) grounds of appeal against the Ruling that: -
i. The learned trial magistrate erred in law in failing to evaluate, assess and analyze the extracts and evidence on record and coming up with an objective judgment;
ii. The learned trial magistrate erred in law and fact by finding against the overwhelming weight of evidence adduced by the Appellant;
iii. The learned trial magistrate erred in law and facts in finding that the Respondents had proved their case on a balance of probability despite lack of evidence in support of that position in their pleadings;
iv. That the trial magistrate went beyond her powers and granted a prayer on the manner of distribution of the estate which has not been prayed by the applicants.
v. The Learned trial magistrate distributed the property in manner that is against the law.
vi. The Learned trial magistrate failed to consider evidence that the parties herein wished the property be divided according to households as the two families currently reside in the as such on the ground with a road separating the families.
vii. The learned trial magistrate erred in law and fact by determining questions that had not been framed during trial.
viii. The trial magistrate failed to consider the practical impact of the judgment been that the suggested mode of distribution of property is a recipe for chaos as the two households to not see face to face.
ix. The learned trial magistrate erred in law and fact in failing to establish that the mode of distribution not prayed for but otherwise granted is a recipe for disaster as currently the two households do not see eye to eye.
x. The learned Judges erred in law and in fact in failing to apply the long-established principles in succession disputes involving more than one household
7. The appeal was canvassed by way of written submissions. The Appellant filed her submissions dated 17th July 2023 while the Respondents filed theirs dated 18th January 2024.
8. The Appellant’s submissions were quite lengthy, giving the background of the matter since 2011 when the dispute was first filed in court. However, for the purposes of this appeal, the only relevant portion of the submissions is that which relates to the Ruling of the trial court dated 14th October 2020 which the subject of this appeal.
9. In a nutshell, it is the Appellant’s case that the parcel of land known as L.R. KABETE/KIBICHIKU/1395 being the only known asset left behind by the deceased be distributed on a 50/50 basis between the 1st and 2nd houses of the deceased.
10. On the other hand, the Respondents supports the ruling by the trial court and submits that the trial court’s Ruling and order of 14th October 2020 be maintained since it reflects the correct position in law.
Analysis and determination
11. This being a first appeal, this court is duty bound to reevaluate and reassess the evidence tendered at trial with a view of reaching its own conclusion on the issue of liability and on quantum, bearing in mind that unlike the trial court, it did not have the advantage of observing the demeanor of the witness and hearing their evidence first hand. See the Court of Appeal decision in Peters vs Sunday Post Limited [1958] EA where the court stated that; -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses……the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
12. At the same time, I am also required to bear in mind the fact that an appeal to this court is by way of retrial and this court is not bound by the findings of the trial court merely because it did not have the advantage of hearing the witnesses testify and seeing their demeanor as was held in the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial court .....is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
13. I have perused the memorandum of appeal and submissions by the parties and note that the only issue for consideration in this appeal is a determination by this court how the L.R. KABETE/KIBICHIKU/1395 being the only known asset left behind by the deceased should be distributed, taking into account that the deceased was died intestate.
14. From the pleadings and the proceedings, it is not in dispute that the deceased was a polygamous man and left behind two houses. That the 1st house, the house of Gathoni Gitau (Deceased) had four children, with the first-born son (also deceased) being the husband of the Appellant herein. The 2nd house, being the house of Grace Muthoni Gitau (Alive) has eight children. The Respondents are from the 2nd house.
15. The question that needs to be answered in this appeal is whether the subject property is to distributed on a 50/50 basis between the two houses as sought by the Appellant, or whether it should be distributed equally among the deceased’s children and the surviving wife, as directed by the trial court.
16. In a case of this nature where the deceased died intestate and was a polygamous man survived by two widows and children the guiding law on distribution of his estate is Section 40 of the Law of Succession Act which primarily provides as follows; -
“(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.
(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.
17. From the above, it is clear that the scheme of distribution of a polygamous man who has died intestate as provided under the Act is that the net estate is to be distributed to the houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number of children.
18. It is critical to note that Section 3 of the of the Law of Successions Act defines a house in a polygamous setting to mean a family unit comprising a wife and children of that wife. The Section provides that; -
“house" means a family unit comprising a wife, whether alive or dead at the date of the death of the husband and the children of that wife;”
19. Section 40 of the Law of Succession Act was applied in the case of Rono v Rono Civil Appeal No 66 of 2002, where Waki J.A (as he then was) stated inter alia that: -
“More importantly, section 40 of the Act, which applies to the estate, makes provision for distribution of the net estate to the “houses according to the number of children in each house, but also adding any wife surviving the deceased as an additional unit to the number of children.” A “house” in a polygamous setting is defined in section 3 of the Act as a “family unit comprising a wife and children of that wife.”
20. Further, the court in Re Estate of John Musambayi Katumanga – Deceased [2014] eKLR, held as follows:-
“The spirit of part v, especially sections 35, 38, and 40, is equal distribution of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender, and financial status of the children.
21. The formula for distribution of the estate of a deceased intestate polygamous man was illustrated in the case of was explained in the case of In re Estate of John Karuma Mbiyu (Deceased) (Succession Cause 3398 of 2004) [2024] KEHC 7974 (KLR) (Family) (4 July 2024) (Ruling), where Chemitei J, cited with approval the case of In re Estate of Joseph Eric Owino (Deceased) [2022] eKLR, where the court stated that; -
“In addition, in the Matter of Re Estate of Benson Ndirangu Mathenge(deceased) Nakuru HCSC NO. 231 of 1998(Ondeyo J), the deceased was survived by his two widows and their children. The first widow had four children, while the second widow had six children. The court stated that the first house was comprised of five units while second had seven units. The two houses of the deceased combined and looked at in terms of units made up twelve units. The court distributed the estate to the children and the widows treating each as a unit. The land available for distribution was forty acres, which was divided by the court into twelve units. Out of the twelve units, five were given to the first widow and her four children, while the remaining seven units went to the second widow and her six children.”
22. In the instant case, it is evident from the record that the deceased let two houses. The 1st house, the house of Gathoni Gitau (deceased) had four children. The Appellant is a wife to Joseph Kamau Gitau (deceased) from the 1st house. On the other hand, the 2nd house, the house of Grace Muthoni Gitau has eight children. Grace Muthoni Gitau is still alive. It therefore follows that the two houses of the deceased combined and looked at in terms of units made up thirteen (13) units.
23. Consequently, it follows that the estate of the deceased being L.R. KABETE/KIBICHIKU/1395 is to be distributed to the children and the surviving widow treating each as a unit. In terms of houses, the 1st house, the house of Gathoni Gitau (deceased) and her children is to have 4/13 of the asset while the 2nd house, that of the Grace Muthoni Gitau and her children is to have 9/13 of the Asset.
24. The Appellant in her submissions argued that additional members were added to the 2nd house as beneficiaries to the deceased estate despite the fact that they were not children of the deceased. According to the Appellant, the sole purpose of the addition was to disadvantage her in the distribution. I have however perused the proceedings and note that this has never been an issue in the lower court. The list of beneficiaries has never been a subject dispute in this matter. In any event, I have not seen any evidence adduced by the Appellant in support of that allegation. The argument is found unmerited and therefore dismissed.
25. Accordingly, I find, as the trial magistrate did, that the deceased's estate being L.R. KABETE/KIBICHIKU/1395 shall be distributed according to section 40 of the Law of Succession Act. For the avoidance of doubt, the deceased children and the surviving spouse shall share the estate equally.
26. In reaching this conclusion, I am also guided by the reasoning of the court in the Estate of Ainea Masinde Walubengo(deceased) (2017) eKLR where the court held that: -
“I am of the view that section 40 of the Law of Succession Act will apply to the circumstances of this case. Meaning that the court will distribute the estate of the deceased according to each house, taking into account the number of children in each unit, including the surviving widow.”
27. The Appeal is therefore found without merit and is hereby dismissed.
28. Since this is a matter involving members of the same family, I direct that each party to bear their own costs.
29. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT
THIS 24TH DAY OF OCTOBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses Court Assistant
Ms. Theuri h/b for Oduk……... for the Appellants
Ochieng h/b for Ms. Njeri……..for the Respondent