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Court of AppealDismissedNot stated in judgment

Samuel M Mugenya v Wanjiru Mugenya & Another [1987] KECA 22 (KLR)

Court of Appeal of Kenya
11 November 1987
NJNyarangi JAPJPlatt JAAJApaloo JA
690 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to overturn two lower courts' decision dividing a polygamist's land among his wives' houses under Kikuyu customary law.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered by Nyarangi JA on 11 November 1987 with Platt and Apaloo JJA concurring, arose from a succession dispute over the land of a polygamous deceased man. The second class magistrate at Nyeri had ordered parcel Tetu/Unjiru/623 to be shared equally between the houses of Wanjiru d/o Mugenya and Margaret Nyokabi w/o Mugenya, the deceased's wives whose houses had received no registered land, and the late Justice Patel affirmed that decision in the High Court. The appellant, a son of the deceased by his first wife Thuguri, contended that his father never sub-divided his land and that both parcels should be divided into three equal portions, one per house. The Court framed two questions: whether the lower courts misdirected themselves in finding the land had been distributed according to the three houses, and whether they properly considered all the evidence. It held that the concurrent findings were supportable on the evidence and accorded with Kikuyu customary law dividing a polygamist's land amongst the houses of his wives, noting that the appellant's mother had already been allocated land, on which she was buried, now registered in the appellant's brother's name. Platt JA entertained some doubt on the facts but found no matter of law permitting interference. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether it was a misdirection for the magistrate and the judge to hold that the land had been sub-divided according to the three houses
  2. 2.Whether the lower courts properly considered all the evidence

Key legal issues

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01

Whether the Court of Appeal could disturb concurrent findings of the magistrate and High Court on distribution of a polygamist's land

Holding

The appeal fails absent grounds for interfering with the judgment of the High Court; the concurrent findings were supportable on the evidence.

Reasoning

The trial and first appellate courts analysed and considered all matters of fact and decided that parcel 623 should be inherited by the two wives whose houses received no land, consistent with Kikuyu customary law. The appellant's mother had already been allocated land on which she was buried and registered in his brother's name. No ground raised matters worthy of consideration under Section 72(1) of the Civil Procedure Act.

p. 2

Legal principles established

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  • An appellate court will not interfere with concurrent findings of fact of the two courts below unless there is an apparent matter of law justifying interference.
  • Under Kikuyu customary law, the land of a polygamous man is divided amongst the houses of his wives.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

NJ
majority

Wrote the judgment

Delivered the principal judgment dismissing the appeal against concurrent findings on distribution of a polygamist's land under Kikuyu customary law.

The result, therefore, is that in my view this appeal is unmeritonous and deserves to be dismissed with costsp. 2
PJ
concurring

Wrote the judgment

Entertained some doubt on the factual conclusion but agreed there was no matter of law warranting interference.

Having entertained some doubt whether the courts below came to the right conclusion, it is nevertheless true, that there is no apparent matter of law upon which this court can interfere.p. 2
AJ
concurring

Wrote the judgment

Agreed there was no sound basis for interfering with concurrent findings of the two courts below.

I agree that there is no sound basis on which we can interfere with concurrent findings of the two Courts below.p. 2
On appeal from
High Court of Kenya
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal (statutory appeal; specific provision not stated in judgment)

Relief refused

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Appellant's claim that the two parcels be sub-divided into three equal portions, one for each house

Concurrent findings of the lower courts were supportable on the evidence and in accordance with Kikuyu customary law; no basis for appellate interference

p. 2

Costs

Appeal dismissed with costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That decision is in accordance with the Kikuyu customary law under which the land of polygamous man is divided amongst the houses of wives.
p. 2Kikuyu customary law on succession to land in polygamous families
The appellant’s main argument necessarily means that his appeal must fail unless he can show that there are grounds for interfering with the judgment of the high court.
p. 2Burden on appellant to justify interference
The result, therefore, is that in my view this appeal is unmeritonous and deserves to be dismissed with costs and as my brethren agree, it is so ordered.
p. 2Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment cites Sha v Aguto with conflicting years: '[1970] EA 263' at the head and '[1979] EA 263' in the body.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel M Mugenya v Wanjiru Mugenya & Another [1987] KECA 22 (KLR)", Case Analysis (1987). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/22/eng@1987-11-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.