https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11562

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION CAUSE NO. 730 OF 2010** **IN THE MATTER OF THE ESTATE OF MATISELA ELISHA LIKOKO (DECEASED)** **BETWEEN** **FRIDAH INGATO LIKOKO ...................................................... PETITIONER/RESPONDENT** **VERSUS** **FINNY EKONYI LIKOKO ........................................................................... 1ST OBJECTOR** **MIRIA MAKEBA LIKOKO …………………………..……………………...... 2ND OBJECTOR** **JAPHETH OMUCHEI ……………………………………………………..….... 3RD OBJECTOR** **AND** **TENDERWOOD INDUSTRIES LIMITED ……….………..…. INTERESTED PARTY/APPLICANT** **RULING** 1. The deceased, Matisela Likoko Namuto died on 2/10/2006. By a Petition dated 21/10/2010, the Petitioner sought for letters of Administration interstate and listed the deceased’s dependants as:- herself, Finny Ekonyi Likoko (son), Japheth Likoko (minor), Bonface Likoko (minor). She further listed Wilson Kwatoya Peru (buyer) as a liability of the estate. 2. After securing Grant of Letters of Administration on 9/5/2011, the Petitioner filed summons for confirmation of Grant. According to the affidavit in support of the summons for confirmation of Grant sworn on 25/4/2012, the deceased owned land comprised in L.R. No. ISUKHA/SHIRERE/3154 out of which 0.54 hectares was to devolve to her while 1.2 hectares was to devolve to Wilson Kwatoya Peru. A Certificate of Confirmation of Grant was issued on 1/10/2012 in which the deceased’s property was distributed as proposed by the Petitioner. 3. By an application dated 10/2/2023, the Objectors sought revocation of the Grant on the grounds that the Petitioner had excluded some dependants of the deceased from the Succession proceedings and named only two children in the petition. Furthermore, it was their case that one of the persons named as a dependant to the decease namely Bonface Lukoko is a child to the 2nd Objector. 4. On 26/3/2025, the Court revoked the Certificate of Confirmation of Grant and directed that the Petitioner files summons for confirmation of Grant and serve the same upon Wilson Kwatoya Peru, the Interested Party, Robert Makhatsa Inzekele and Joseph Masaka Inzekele within 45 days. 5. By a Summons for Confirmation of Grant dated 1/4/2025, the Petitioner proposed to distribute the estate of the deceased comprised in L. R. No. ISUKHA/SHIRERE/3154 and L.R. No. EAST BUNYORE/EBUSHIRATSI/553 as reflected in the consent of distribution attached to the supporting affidavit. According to the Petitioner, the deceased was survived by the following dependants:- Fridah Ingato Likoko (widow), Finny Ekenyi Likoko (son), Miria Makeba Likoko (daughter), Millicent Afandi Likoko (daughter0, Balestine Khiranji Likoko (daughter), Charles Likoko Elisha (son), and Japheth Lokoko (daughter). The proposed mode of distribution was as follows:- L.R. No. ISUKHA/SHIRERE/3154 comprising 3.8 acres to be distributed to all the named dependants as beneficiaries with the Petitioner’s share being 1.0 acre to be held in trust for the whole family while each of the 3 sons would get 0.50 acres each, the daughters 0.125 acres each and 0.05 acres to be preserved for the road. As for L.R. No. EAST BUNYORE/EBUSHIRATSI/553 comprising 2.0 acres, it was proposed that the entire parcel be inherited by Finny Ekonyi Likoko. 1. The 1st and 2nd Objectors filed affidavits of protests. The protest was heard by way of viva voce evidence. 2. The 1st Protestor Wilson Kwatoya Peru testified as PW1 and adopted his affidavit of protest dated 29/7/2025 as his evidence-in-chief. He said that he and the family attended court for confirmation before the land, which he had purchased from the deceased was transferred to him. The title was then transferred to him on transmission until two (2) years ago when the dispute arose. 3. On cross-examination, the Protestor said that he had produced the sale agreements. He only identified the agreement dated 2/8/2002 and said it was the second agreement. He conceded that the agreement did not show the acreage he was buying. PW1 said that he disposed the land to the Interested Party. He urged the court to give him the land as marked on the ground, which was three (3) acres but agreed that without the sale agreements, the court could not determine how much land he had bought. 4. PW2 was Japhet Abraham Omucheli, who also adopted his affidavit of protest dated 29/7/2025. He testified that during confirmation, he and Finny Ekonyi, Fridah Ingato Likoki (the Petitioner), and Boniface were present alongside the Purchaser PW1. According to him, they had agreed that L.R. No. ISUKHA/SHIRERE/1601 comprising 0.28 acres devolves to the Petitioner while L.R. No. ISUKHA/SHIRERE/1602 devolves to PW1 and since then, no one had contested L.R. No. ISUKHA/SHIRERE/1602, and they only contested L.R. No. ISUKHA/SHIRERE/1601. PW2 further stated that the Petitioner and his brothers returned a portion of the land which the deceased had sold to the church and directed his brothers to settle thereon while the last born was to remain on L.R. No. ISUKHA/SHIRERE/1601. He said that his brothers remained on the land for over fifteen (15) years but it recently transpired that the church had secured a title over the said land whereof his brothers went back to lay a claim on L.R. No. ISUKHA/SHIRERE/1601. He said that he was willing to cede the brothers a portion from L.R. No. ISUKHA/SHIRERE/1601 but they insisted on claiming the entire original land. He said he had no issue with the Purchaser. 5. When cross-examined, PW2 said that after confirmation, L.R. No. ISUKHA/SHIRERE/1601 and L.R. No. ISUKHA/SHIRERE/1602 were the result of subdivision of L.R. No. ISUKHA/SHIRERE/3154 and that from the records, L.R. No. ISUKHA/SHIRERE/1601 was transmitted to the Petitioner on 27/2/2014 and transferred to him on 30/5/2019 as absolute proprietor. He said that he did not know how much land PW1 purchased. He also said that currently, his brothers did not have any land but that they were all using it. He further said that there was a company by name Tenderwood utilizing the land for gold mining as per the lease agreement date 1/4/2021 between himself and Tenderwood which agreement expired on 1/4/2024 but Tenderwood was still on the land and he was earning nothing from it. He agreed that the gold was supposed to benefit all the other beneficiaries. He also agreed that he did not pay anything for the land nor did his co-beneficiaries sign a consent for the transfer of the land to him as the absolute owner. He said that he was ready for redistribution of the land provided he got his share. He also said he had no issue with the purchaser’s claim. 6. When questioned by Court, PW2 said that apart from Tenderwood, there were several other people prospecting for gold on the land, some from his side, others from his siblings’ side. 7. The Petitioner testified as DW1 and adopted her witness statement dated 11/8/2025 as her evidence-in-chief. She said that PW1 made a sale agreement once with her deceased husband, which did not show how much land he bought as evidenced by the agreement. She said she never sold land to PW2 and did not know how it ended up in his name. She prayed that the property reverts to the deceased so that she could redistribute it to all his dependants including the daughters, who had not been factored in during the first distribution. 8. On cross-examination, DW1 denied that the deceased used to show PW1 the land every time he sold a portion to him. She said she had never lodged a claim against PW1 over user of the land. She said that the deceased never had a dispute with PW1 over the land and that after the deceased passed on, they attended court and gave the land to PW1 in the year 2012 and did not lodge any complaint against PW1 until 2021. She said that she had three (3) sons who had all built on the deceased’s land. She also said that the land that had been bought by the Church was currently being used by her sons Charles and Finny while Japhet PW2 uses the portion she lived in. She said she was in Court because of the portion she had been given, which PW2 irregularly transferred to himself, and did not have any issue personally with the portion given to PW1 in 2012. She reiterated that her interest lay in the 0.5 hectares that had been given to her, which she wanted to distribute in equal portions to her children. She said that contrary to what PW2 had said, there was no issue with the land that had been bought by the Church. 9. After the close of the Petitioner’s case, the Beneficiaries took the stand with Finny Ekonyi Likoko testifying as BW1. He adopted his witness statement dated 18/8/2025 and his bundle of documents as exhibits. He said that he was not present during confirmation of Grant and prayed for distribution of the land. He disagreed with DW1’s claim that he had been given a share on the land and said that he lived on land that had been purchased by his wife 25 years ago. 10. BW2 was Miria Makeba Likoko. She adopted her witness statement dated 18/8/2025 and contested PW1’s claim that he bought 3 acres out of L.R. No. ISUKHA/SHIRERE/3154 from the deceased. 11. BW3 was Kaniva Dawson Imbali who adopted his witness statement dated 18/2/2025 in which he testified that on 2/8/2002 he witnessed an agreement of sale of the land comprised in L.R. No. ISUKHA/SHIRERE/3154 to PW1 but the size or acreage of the land had not been agreed upon. 12. At the close of the case, the parties filed written submissions which the court has considered. 13. The issues that arise for determination are:- 14. *Whether this court is seized with jurisdiction to determine the Purchaser’s claim.* 15. *Whether the deceased’s property should be distributed as per the consent on distribution.* 16. The Law of Succession Act confers jurisdiction to the Probate Court to determine issues regarding the identification of dependants and beneficiaries of the deceased, the assets of the deceased, and the distribution of the assets of the deceased to the deceased’s dependants and other beneficiaries whose interests are uncontested. 17. Claims by third parties over any assets of the deceased do not fall within the jurisdiction of the Probate Curt and are supposed to be lodged in the appropriate forum for determination within the procedural dictates of the Civil Procedure Act which has elaborate rules on suits by and against executors and administrators of estates of the deceased. See **In the matter of the Estate of Alice Mumbua Mutua [2017] KEHC 8298 (KLR)** where the Court stated as follows:- ***“27. Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who a neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators.*** ***……………………………*** ***29. Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime, the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be*functus officio*so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.”*** 1. It is not in dispute that Wilson Khatoya Peru was a liability to the estate of the deceased as all the dependants of the deceased did not dispute his claim that he purchased a portion of L.R. No. ISUKHA/SHIRERE/1354 from the deceased. In their Summons for Revocation of Grant dated 10/2/2023, the Objectors did not raise any issue with the Purchaser’s portion which was excised from the deceased’s land and registered in his name as L.R. No. ISUKHA/SHIRERE/1602. Their issue was in regard to L.R. No. ISUKHA/SHIRERE/1601, which they claimed should have been held in trust for them, and L.R. No. EAST BUNYORE/EBUSHIRA/553, which they claimed had been sold off by the Petitioner and Japhet Likoko to the exclusion of the Objectors and the other co-dependants of the deceased who all had a beneficial interest over the said two parcels of land. 2. It is in light of the fact that the Objectors had not raised a specific objection to the Purchaser’s interest over L.R. No. ISUKHA/SHIRERE/1602 that the court did not cancel the title. However, the beneficiaries to the estate of the deceased have now disputed the acreage paid for by the Purchaser, in effect, raising a dispute over the nature of the agreement of sale between the deceased and the purchaser. To resolve such a dispute, the Court would need to delve into the contract of sale and other components arising therefrom including the extent of the interest paid for, and how much land the purchaser took possession of in order to determine the rightful share of the purchaser to exactitude. 3. Rule 41 (3) of the Probate and Administration Rules provides that:- ***“Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to***[***section 71(2)***](https://new.kenyalaw.org/akn/ke/act/ln/1980/104/eng%402022-12-31#section%2071)***of the Act, proceed to confirm the grant.”*** 1. My understanding of Order 41 Rule (3) is that the Probate Court is not the proper forum to determine disputes as to the identity or share of a person claiming an interest in the estate of the deceased person. 2. By dint of Article 162 (2) (3) of the Constitution and the Environment and Land Court Act No. 19 of 2011, the Environment and Land Court has the exclusive jurisdiction to hear and determine all disputes relating to land. Section 13 of the Act states that:- ***“(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.*** ***(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—*** ***(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;*** ***(b)…;*** ***(c)…;*** ***(d)…; and*** ***(e)any other dispute relating to environment and land.”*** 1. Once the parties disputed the extent of the purchaser’s claim over the deceased’s land, the claim ceased to be a claim that can be considered by the Probate Court and became a land dispute. Despite being an acknowledged liability, the dispute as to the extent of the purchaser’s liability ultimately ousts the jurisdiction of this court. In **Re Estate of Stone Kathuli Muinde (Deceased) [2016] KEHC 3725 (KLR)**, the Court held:- ***“27. With regard to the assets, one of the questions that may present itself would be the ownership of the assets presented as belonging to the deceased. An outsider may claim that the property does not form part of the estate and therefore it need not be placed on the probate table. The resolution of such questions do not necessitate joinder into the cause of the alleged owner to establish ownership. It is not the function of the probate court to determine ownership of the assets alleged to be estate property. That jurisdiction lies elsewhere.*** ***28. Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.”*** 1. Flowing from the above, I find that this court lacks the jurisdiction to determine the purchaser’s claim. 2. The court has painstakingly considered the protest, the evidence on record and the parties’ respective submissions on the proposed mode of distribution. As a consequence of the decision that this court lacks jurisdiction to hear and determine the purchaser’s claim, the court cannot determine the issue of distribution in respect to L.R. No. ISUKHA/SHIRERE/3154 or any title resultant from subdivision thereof. The court is alive to the fact that in my ruling dated 26/3/2025, it revoked the title relating to L.R. No. ISUKHA/SHIRERE/1601 and not L.R. No. ISUKHA/SHIRERE/1602, which had been transmitted to the purchaser and, later subdivided and transferred to third parties. Nevertheless, since the two parcels of land emanate from L.R. No. ISUKHA/SHIRERE/3154 which originally belonged to the deceased, it is in the interest of justice that distribution of the said property be held in abeyance until the dispute is resolved. 3. In her earlier application for confirmation of Grant, the Petitioner had not listed the land comprised in L.R. No. BUNYORE/EBUSHIRATSI/553 as one of the properties of the deceased. In the Summons for Confirmation of Grant dated 1/4/2025, the Petitioner allocated the whole of the said title, comprising 2.0 acres, to Finny Ekonyi Likoko. None of the beneficiaries contested the said allocation. In the premises, I allow partial confirmation of the Grant and order that L.R. No. BUNYORE/EBUSHIRATSI/553 do devolve to the 1st Objector, Finny Ekonyi Likoko. 4. In the result, the court makes the following orders:- 5. The property comprised in L.R. No. ISUKHA/SHIRERE/1601and L.R. No. ISUKHA/SHIRERE/1602 (resulting from subdivision of L.R. No. ISUKHA/SHIRERE/3154) is set aside pending determination of a suit to be filed in the Environment and Land Court. 6. A partial Certificate of Confirmation of Grant is issued devolving L.R. No. BUNYORE/EBUSHIRATSI/553 to Finny Ekonyi Likoko. 7. This is a family matter hence I make no order as to costs. Dated, signed and delivered at Kakamega this 23rd day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Mr. Wandallah for the Petitioner/Respondent No appearance for Mr. Magina for 3rd Objectors No appearance for the Interested Party/Applicant Court Assistant: Polycap