MWENJA KABIA KIRUGUMI v ALICE MICERE MUGO [2009] KEHC 3417 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

Civil Appeal 17 of 2008

MWENJA KABIA KIRUGUMI……......…APPELLANT

VERSUS

ALICE MICERE MUGO…...............….RESPONDENT

JUDGMENT

This appeal arises from the Judgment of A.K. Ithuku Resident Magistrate in Kerugoya Succession Cause No. 7 of 2007.  The appellant herein filed a Succession Cause before the Kerugoya court where he was granted the grant of letters of administration to his late father’s estate.  Before the confirmation of the same, the Respondent herein who was his sister filed an affidavit of protest.  She said that she had been asked by her late parents to take care of the family land since if it was left to the petitioner, he would sell it.  Viva voce evidence was adduced which actually revealed that the appellant’s wife and children had left him and he did not sound like a very responsible person.  After hearing the protest, the learned trial magistrate delivered his Judgment and ordered that the petitioner, his brother and the respondent herein all share the land in question in equal shares.

The learned magistrate also ruled that one Timothy Gathere Kamau who was not a dependant of the deceased should not have been given any share of the deceased’s estate.

Being aggrieved by that Judgment, the petitioner filed this appeal, citing the 4 grounds of appeal enumerated on his memorandum of Appeal as hereunder:-

1.   The learned magistrate erred in law in awarding the respondent a share of the deceased estate when its clear from the evidence on record that she was not a dependant of the deceased.

2.   The learned magistrate erred in law and fact in distributing the deceased estate without any valid legal basis on record.

3.   The learned magistrate erred in law and fact in failing to note the interest of the purchaser one Timothy Gathere as evidenced by the document filed in court thereby arriving at a wrong decision.

4.   The learned magistrate erred in law and fact by confirming the grant of letters of administration without ascertaining that all the children of the deceased have consented to the mode of distribution of the estate thereby disinheriting some of the children.

He entreats the court to set aside that Judgment.

I have considered these grounds along with the brief evidence and Judgment of the lower court.  I note that the learned trial magistrate did distribute the deceased’s estate in accordance with section 40 of the law of Succession Act.  In so doing, he acted within the law.  The protestor was entitled to a share of the deceased’s estate unless she chose to relinquish the same to her brothers.  I believe the reason why the learned trial magistrate decided to give her a share and leave out the 2 other sisters listed in the cause is because they had not shown any interest in the estate.  Indeed, the court notes that they did not appeal against that Judgment.  Grounds 1 and 4 of the appellant’s appeal must therefore fail.  On the issue of one Timothy Gathele not being given the 1 acre the petitioner had given him, the court notes that the learned trial magistrate noted that the said person was not a relative of the deceased.  It is also noted that in his testimony in court, the petitioner said that he had not sold the land to him and had only borrowed money from him to enable him file the succession cause.  That being the case then, the said Timothy was not a buyer of the said land.  His only recourse was to claim his money from the petitioner but not to be given almost half of the deceased’s estate.  My finding therefore is that the learned trial magistrate did not err in his finding that Timothy was not entitled to that plot.  This therefore clearly shows that none of the appellant’s grounds of appeal are sustainable.  The learned trial magistrate did not err either in law or in fact in distributing the estate the way he did.  It did not matter that the respondent had stated that she was not interested in the land.  She can still surrender the same to the other siblings if she so wishes but it was her entitlement.

In sum therefore, I find the appeal before me devoid of merit and dismiss the same with orders that each party bears its own costs.

W. KARANJA

JUDGE

Delivered, signed and dated at Embu this 18TH day of June 2009.

W. KARANJA

JUDGE

In presence of:- Alice Micere Mugo- Respondent present

Appellant- Absent.

W. KARANJA

JUDGE