1.This appeal arises out of the Ruling from a protest filed by the Appellant dated 25th October 2013 against the application for confirmation of grant dated 17th September 2013 in which the Respondent identified two assets of the estate of the deceased Elijah Wanjiku Kariuki and proposed that they be shared as followsa.Loc 5/Ngurweini /477Luis Wamwea Kariuki ………… 0.9 acresPhilip Muiruri Kariuki …………..0.8 acresBatholomew Wainaina Kariuki….0.8 acresJoan Nyambura Kariuki ……….0.8 acresb.Loc5/ Mariaini/ 305Joseph Gachomo Kariuki ……...0.8 acresJoan Nyambura Kariuki ……...0.3 acres
2.The proposed mode of distribution by the Petitioner Respondent was consented to by Philip Muiruri Kariuki, Joan Nyambura Kariuki and Josphine Wamaitha Kariuki.
3.In the said affidavit of protest, the Appellant contended that his brother Philip Muiruri Kariuki had already sold to him his shares in LOC.5/NGURWEINI/477 and bought another land elsewhere and that Joan Nyambura Kariuki was married and comfortably living with her husband.
4.Following a family meeting on the 16th April 2013 before the area chief and another one on the 4th august 2013, they did not agree to give any share to Josephine and Joan who were married, as a result of which he proposed the mode of distribution as follows;a.Loc 5 / Ngurweini/477Luis Wamwera Kariuki ………… 0.8 acresBatholomew Wainaina Kariuki …. 2.2 acresb.Loc 5 /mariaini /305Joseph Gachomo Kariuki …….….0.8 acresLuis Wamwea Kariuki ……….….0.3 acres.
5.The Petitioner Respondent filed a further affidavit in which it was deposed that one of the beneficiary Philip Muiruri Kariuki was deceased but survived by his wife Julia Mugure Muriruri who should be substitute with and entitled to his share of 0.8 acres.
6.The Petitioner in opposing the protest filed a joint affidavit of Joseph Gachomo Kariuki and Luis Wamwea Kariuki in which it was deposed that the proposed mode of distribution by the Protestor was skewed and discriminatory against some of the beneficiaries on the basis of gender and marital status and that the purported agreement of sale was not signed by the registered owner of the land and or with the consent of the wife of the alleged seller.
7.The said protest proceeded for hearing and by the Ruling herein the subject matter of this appeal was dismissed on the basis that the purported agreement for sale was entered in the life time of the deceased and therefore Philip had no right to sell the land he did not own and that Joan being a daughter of the deceased was entitled to the estate under section 38 of the act
8.Being aggrieved by the said determination, the Appellant raised the following ground of appeal:(a)The Learned Magistrate erred in law and fact in making a finding the Protest against the confirmation of grant was unmerited.(b)The learned Magistrate erred in law and fact in making a finding that the Protest was frivolous and vexations.(c)The learned Magistrate erred in law and fact in confirming the grant of letters of administration dated 21st March, 2013 as dated 7th September, 2013 as opposed to the affidavit of protest.(d)The learned Magistrate erred in law and fact in failing to take into consideration the submissions by the Protestor.(e)The learned Magistrate erred in law and fact as the Ruling lacks reasoning.(f)The learned Magistrate erred in law and fact in failing to determine which properties for the deceased were available for distribution.(g)The learned Magistrate erred in law and fact in distributing properties which were already sold and did not form part of the estate of the deceased.(h)The learned Magistrate erred in law and fact in failing to take into account the deceased’s Oral Will in gifting part of the estate.
9.On behalf of the Appellant it was submitted that there was a valid sale agreement between himself and one of the beneficiaries and should have been confirmed by the Court.
10.The Respondent did not file any submission.
11.This being a first appeal, the Court is under a duty to re-evaluate the evidence tendered before the trail Court and to come to its own determination thereon. It was the Appellant case that he had filed the protest and outlined how the estate should be shared equally amongst the four sons of the deceased. It was his further evidenced that his brothers were not living on the property. He further stated that his sisters should not inherit the estate as the family had agreed that only the sons should for which he proposed 1.1 acres for each.
12.He stated that he was the secretary during the family meeting and that their parents had subdivided the land in their life time with the mother leaving a will and that it was not necessary to involve the wife of his brother in the sale between them.
13.His evidence was supported by PW2 Joseph Gichanja Guchu to the effect that he witnessed the agreement between the Protestor and his brother for the Sale of land at a sum of kshs 15,000in the year 1998 in which he surrendered his right to the Protestor and that he was present when the agreement was signed.
14.PW3 Peter Ngige Gichango confirmed that both Philip Muiruri and Joseph Gachomo who were brothers of the Protestor were deceased but he could not confirm the agreement between the Protestor and his brother and did not witness the land being sold.
15.On behalf of the Petitioner he testified that he was the eldest son of the deceased and was issued with letters of administration together with Joseph Gachomo and that their mother had six children who had consented on the mode of distribution save for the Protestor. They further proposed that the wives of their dead brothers be substitute in their place as Muriuri had no right to sell the land which belonged to their father. Of all the children of the deceased only one renounced her right to the estate.
16.In cross examination, he stated that the family had agreed on the proposed mode of distribution at a meeting where the Protestor was the secretary.
17.DW2 Julia Mugure Mujiruri stated that her husband was a son of the deceased who died in the year 2014. In his life time he had given the Protestor authority to cultivate his land since he was not living there having moved to M Makuyu in the year 1970 and that she had no knowledge of the same having sold his portion of land to the Protestor.
Analysis and Determination
18.I have taken my time to analyse the evidence tendered before the trial Court and the submissions by the Appellant in his layman terms and have identified the following issues for determination:a.Whether the Court was right in dismissing the Appellants protest /put in other words whether the protest was proved?b.What order should the Court make as regards the appeal herein.
19.It is not disputed that the Protestor and the Petitioner were sons of the deceased herein. the beneficiaries of the estate of the deceased are also not in dispute. The only issue in dispute is whether the Protestors sister who had not renounced her right to the property was entitled to inherit and whether one of the beneficiaries had sold his right to the Protestor and if so what is the net effect of the said sale on the proposed mode of distribution.
20.The first issue for determination is whether the said Philip Muiruri had any preoperatory right to sell to the Protestor? from the evidence tendered in Court it is clear that the property herein could not have devolved to the said Philip as there is no evidence that the deceased had transmitted the same to the decease in her life time and as at the time of her death the said estate was freehold property available for distribution as found by the trial Court.
21.All the children of the deceased whether married and of either gender are in law entitled to inheritance and therefore the trial court cannot be faulted in dismissing the Protestor’s objection to the proposed mode of distribution which took into account all the beneficiaries of the estate.
22.Whereas it is clear that there was an intention by the said Philip Muiruri as the biblical Esau to sell his birthright and that indeed the same sold his birth right to the Protestor as evidence by the agreements annexed to the protest, as rightly pointed by the Court, as at that time the same only sold his right in anticipation of inherence but the property still belonged to the deceased and was therefore available for distribution and the trial Court cannot be faulted in dismissing the protest but he should have taken into account the evidence availed by the Protestor which from the record of the proceedings herein was not contested by all the parties including the Petitioner in compliance with the provisions of Article 159 (2)(d) of the Constitution.
23.The wife of the said brother who is now fronted by the Petitioner to be entitled to the share of her deceased husband confirmed that indeed the husband left his share of land to the Protestor and moved away to Makuyu where they are living in todate.
24.This Court as a Court of equity cannot shut its eyes to the fact that the deceased surrendered his birthright to his brother for a payment and that the Protestor has since settled therein and made substantial development.
25.I therefore, exercising the powers and rights of the first Appellate Court, order that the right and interests of Philip Muiruri to the estate herein be held by or in trust for the Protestor having paid monies to the same in anticipation of the ultimate transmission.
26.In the final analysis the Appellant partial succeed. The grant herein be confirmed as proposed by the Petitioner save that the Protestor shall take the portion which Philip was entitled to, that is to say that which the Petitioner had proposed to go to Julia Mugure Muiruri who moved out of the suit property with the deceased upon payment by the Protestor moved to Makuyu. Like Esau of the bible, the birthright is gone!
27.The Court shall not be a slave to technicalities as proposed by the Petitioner but must be a Court of equity which honours agreements whether it be between brothers as in this case.
28.This being a family dispute, each party shall bear their own cost and it is ordered.