Frankline Kithinji & 3 others v Pharis Nyaga Muriithi [2012] KECA 127 (KLR)
The bottom line
#Kenya's Court of Appeal let a family-negotiated land distribution stand, dismissing sons' appeal against their father's estate division and ordering no costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court was wrong to expunge affidavits filed under rule 16 of the Probate and Administration Rules without leave, in breach of natural justice
- 2.Whether parcel No. MWIMBI/MURUGI/1476 forms part of the estate of the deceased
- 3.Whether the respondent's affidavit in support of confirmation contained false averments
- 4.Whether the oral will of the deceased could be relied upon given the time requirements of Section 9 of the Law of Succession Act
- 5.Whether the widows and fatherless were deprived of their rights in parcel No. MWIMBI/MURUGI/1478
- 6.Whether the consent filed on 4th November 2011 should be adopted as an order of the Court
Key legal issues
#Duty of a first appellate court
The Court is obliged to re-evaluate the entire record but will not interfere with the High Court's findings absent demonstrable error of fact or law.
The Court heard the appeal as a first appeal because the consent was not unanimous. It reviewed the record of the succession cause against each of the five grounds of appeal, examined the affidavits expunged below, and re-appraised the evidence on the parcels of land. Finding no error of fact or law in the ruling of the High Court, it declined to disturb the findings, while noting its duty under sections 3A and 3B of the Appellate Jurisdiction Act to facilitate just resolution.
Adoption of a family consent as an order of the Court
Where the family has amicably resolved a succession dispute, the Court may substitute the lower court's order with distribution according to the consent, even over the objection of one non-signatory beneficiary.
The 2nd to 4th appellants and the respondent urged adoption of the consent; the 1st appellant and cross-appellant John Gitari objected. The Court found John Gitari adequately catered for in Clause 7 of the consent and treated his silence as consent, noting the family meeting minutes urged resolution 'once and for all'. Invoking Article 159(2)(c) on reconciliation and sections 3A and 3B of the Appellate Jurisdiction Act, the Court dismissed the appeal and ordered distribution per the consent to preserve family peace.
Unchallenged expungement of affidavits and natural justice
Affidavits filed by beneficiaries under rule 16 of the Probate and Administration Rules could properly be excluded where deponents did not testify and the administrator had no opportunity to challenge them.
The 1st appellant contended the expunged affidavits carried relevant information. The Court perused them and found they were similar in all relevant aspects, raised only apprehensions about the cause dragging on, and that apart from Joyce Muiro (PW2) none of the deponents gave evidence at the hearing of objections. Because the respondent had no opportunity to challenge the averments, the Judge was correct in declining to consider them, and the expungement order was itself unchallenged.
Reliance on the deceased's oral distribution of land
Submissions invoking Section 9 of the Law of Succession Act to exclude the oral will could not stand where there is sufficient evidence of long-standing settlement on portions allocated by the deceased.
The Court observed there is sufficient evidence that the widows and the respondent had settled on the divided portions in parcel number 1478 as shown by the deceased during his lifetime. The respondent, as eldest son, enjoyed a special place in the family and had taken over family responsibility as a father. On that evidence the ground attacking the confirmation affidavit and the oral will failed.
Legal principles established
#- A first appellate court must re-evaluate the record of the cause and will not interfere with findings below absent error of fact or law
- Courts are enjoined to promote reconciliation and traditional dispute resolution, and may adopt a family settlement consent in succession disputes
Court orders
#- 1.The appeal is dismissed
- 2.The order of the High Court dated 24th November 2005 is substituted by an order that the estate of the deceased Mutithi Mugambi be distributed as per the contents of the consent filed in Court on 4th November 2011
- 3.No order on costs, this being a family cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C. Succession Cause No. 208 of 1993
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act (Sections 3A and 3B cited); succession matter
Relief refused
#Ground 1 - expunging of affidavits filed under rule 16 without leave
The deponents did not give evidence and the respondent had no opportunity to challenge the averments; the expunging order was not challenged
Ground 2 - that parcel No. 1476 is not the property of the deceased
Uncontroverted evidence of objector John Gitari that the deceased gave the parcel to the sons of the 2nd house
Ground 3 - falsity of the respondent's confirmation affidavit
The widows are deceased and the evidence supports the respondent's averments as to the deceased's wishes
Ground 4 - inadmissibility of the oral will under Section 9 of the Law of Succession Act
There is sufficient evidence that the widows and respondent settled on portions shown by the deceased during his lifetime
Ground 5 - deprivation of widows and fatherless in parcel No. 1478
Ground overtaken by the demise of the widows who had occupied their portions, and all other beneficiaries have consented
Costs
No order on costs; the Court stated: "We do not make any order on costs, this being a family cause."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of all the above is that we dismiss the appeal and further direct that the order of the High Court dated 24th November, 2005 be substituted by our order that the estate of the deceased MutithiMugambi be distributed as per contents of the consent filed in the Court on 4th November, 2011.
We do not make any order on costs, this being a family cause.
we have, as is required of us in the matters of first appeal, re-evaluated the record of the appeal and we are unable to find any error of fact or law in the ruling of the High Court and we shall not interfere with those findings.
The Constitution also enjoins the courts to promote reconciliation and traditional dispute resolutions inter alia as per Article 159 (2) (c).
as the family has now resolved the dispute amicably and parties have settled on their respective portions of the estate, it shall not be appropriate to upset that atmosphere of peace and tranquility that is prevailing in the family.
We also find so, simply because the respondent had no opportunity to challenge the averments made in those affidavits.
Issues in the judgment
#The names of the deceased are rendered inconsistently within the judgment - 'Murithi Mugambi' at the outset and 'MutithiMugambi' in the final orders
The consent lists a parcel No. 1477 for rectification of names although only parcels 1475, 1476, 1478 and 1479 are described as belonging to the estate
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Frankline Kithinji & 3 others v Pharis Nyaga Muriithi [2012] KECA 127 (KLR)", Case Analysis (2012). Civil Appeal 77 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/127/eng@2012-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.