Ong’ai v Ong’ai (Succession Appeal E006 of 2025) [2026] KEHC 9357 (KLR) (10 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION APPEAL NO. E006 OF 2025** **ANDREW ASINULI ONG’AI……………………………………………………….APPELLANT** **VERSUS** **JEREMIAH ONG’AI……………………………………………………...……….RESPONDENT** *(Being an appeal from the ruling of Hon. L. Kassan delivered on 2nd August 2023 in Succession Cause No. 96 of 2019 at Kakamega Chief Magistrate’s Court)* **JUDGMENT** 1. This appeal arises from the ruling of the Chief Magistrate’s Court at Kakamega delivered on 2nd August 2023 in Succession Cause No. 96 of 2019, wherein the learned trial magistrate dismissed the Appellant’s protest and confirmed the grant in terms of the Respondent’s proposed mode of distribution. 2. Being dissatisfied with the said decision, the Appellant lodged this appeal challenging the entire ruling. **Brief Facts of the Case** 1. The dispute relates to the estate of the late Joel Ong’ai Okara (deceased). 2. Upon issuance of a grant, the Respondent filed summons for confirmation of grant together with a proposed mode of distribution of the estate. 3. The Appellant, a son and beneficiary of the deceased, filed an affidavit of protest objecting to the proposed distribution. 4. He contended that the estate had not been equally shared among beneficiaries, that certain properties including Kakamega/Lugari/1365 and 1366 were wrongly excluded, and that there were alleged irregular dealings involving estate funds. 5. The Respondent maintained that some properties had been lawfully transferred during the lifetime of the deceased and therefore did not form part of the estate available for distribution. 6. The trial court dismissed the protest and confirmed the grant. 7. Aggrieved, the Appellant filed the present appeal. **Grounds of Appeal** 1. The Appellant raises the following grounds of appeal as set out in the Memorandum: 2. THAT the learned trial magistrate erred in law and fact in failing to follow the proper procedure under the Law of Succession Act. 3. THAT the learned trial magistrate erred in law and fact in disregarding the Appellant’s affidavit of protest. 4. THAT the learned trial magistrate erred in law and fact in dismissing the protest without addressing the issues raised therein. 5. THAT the learned trial magistrate erred in law and fact in failing to distribute the estate equally among beneficiaries. 6. THAT the learned trial magistrate erred in law and fact in failing to order accounting for monies held in KCB Account No. 1109401418 and proceeds from livestock. 7. THAT the learned trial magistrate erred in law and fact in excluding properties namely Kakamega/Lugari/1365 and 1366 from the estate. 8. THAT the learned trial magistrate erred in law and fact in failing to properly interrogate alleged transfers to third parties. 9. THAT the learned trial magistrate erred in law and fact in disregarding allegations of forgery of signatures on consent forms. 10. THAT the learned trial magistrate erred in law and fact in failing to order production of bank statements. 11. THAT the learned trial magistrate erred in law and fact in failing to evaluate the Appellant’s submissions. 12. THAT the learned trial magistrate erred in law and fact in finding that the Appellant failed to adduce material evidence. 13. THAT the ruling resulted in unfair disinheritance of the Appellant. 14. This being a first appeal, the Court is required to re-evaluate, re-analyse, and re-assess the entire evidence and draw its own independent conclusions as held in **Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123.** **Appellant’s Submissions** 1. The Appellant submitted that he is a biological son and lawful beneficiary of the deceased’s estate and that the trial court failed to accord due weight to his protest and supporting affidavit evidence. 2. He argued that the affidavit of protest raised serious issues including unfair distribution, exclusion of key estate properties, and alleged interference with estate funds which were never properly investigated by the trial court. 3. The Appellant further submitted that the trial court erred in holding that he had not adduced sufficient evidence, yet his sworn affidavit, together with annexures, constituted admissible evidence that required judicial consideration. 4. He contended that his signature on consent documents was forged and therefore the resulting consents and transfers were void ab initio and incapable of forming a basis for distribution. 5. The Appellant relied on Order 2 of the Civil Procedure Rules to argue that his pleadings clearly set out a cause of action and disclosed triable issues. 6. He further relied on **DT Dobie & Company (Kenya) Ltd v Muchina [1980] KLR,**where the Court emphasized that a case should only be struck out in plain and obvious cases where no reasonable cause of action exists. 7. The Appellant also submitted that the trial court failed to interrogate issues of bank accounts and livestock proceeds, thereby allowing possible intermeddling with estate property to go unaddressed. 8. He therefore urged this Court to allow the appeal, set aside the ruling of the trial court, and order proper redistribution of the estate. **Respondent’s Submissions** 1. The Respondent submitted that the appeal is misconceived, devoid of merit, and an attempt to frustrate the lawful administration of the estate. 2. It was argued that the learned trial magistrate properly evaluated the evidence and correctly applied the law in confirming the grant. 3. The Respondent submitted that under Section 3 of the Law of Succession Act, only “free property” of the deceased forms part of the estate, and property that was validly transferred during the lifetime of the deceased cannot be subjected to succession proceedings. 4. He relied on **Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR and** **Re Estate of Gedion Manthi Nzioka (Deceased) [2015] eKLR*,*** where courts held that inter vivos transfers remove property from the estate unless shown to be invalid. 5. The Respondent further submitted that appellate courts should not lightly interfere with findings of fact by trial courts unless such findings are perverse or unsupported, as stated **in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123.** 6. It was further argued that the Appellant failed to discharge the burden of proof under Sections 107–109 of the Evidence Act, particularly regarding allegations of forgery and financial mismanagement. 7. The Respondent maintained that the Appellant was not disinherited as he had been allocated East/Bunyore/885, which formed part of his entitlement. 8. He concluded that the distribution adopted by the trial court was fair, lawful, and reflective of the deceased’s lifetime arrangements, and urged the Court to dismiss the appeal with costs. **DETERMINATION AND ANALYSIS** 1. **Whether the trial court properly evaluated the protest and evidence on record** 2. The Appellant contends that the trial court dismissed his protest without due and adequate consideration of the averments contained in his affidavit of protest. It is his case that the protest raised serious factual and legal issues touching on distribution of the estate, inclusion of certain properties, and alleged irregular dealings with estate assets. 3. In succession proceedings, an affidavit of protest constitutes substantive evidence upon which the court must make a reasoned determination. The court is therefore obligated to evaluate all the material placed before it and not merely adopt one party’s proposed mode of distribution without interrogating competing claims. 4. In **Karanja v Karanja [1976] KLR 307**, the Court held that disputes in succession must be determined on the basis of evidence and not on assumptions or untested assertions of entitlement. 5. Similarly, **In Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR**, the Court emphasized that a party challenging distribution must place cogent and credible evidence before the court capable of displacing the proposed distribution. 6. This Court has carefully perused the record and notes that the trial court did consider the Appellant’s protest but concluded that it lacked sufficient evidential weight to displace the Respondent’s documentary evidence, particularly in relation to ownership and distribution of the disputed assets. 7. Notwithstanding the above, an appellate court will only interfere where it is shown that the trial court misapprehended the evidence or applied wrong principles, as stated **in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123.** 8. In the present case, no such fundamental misdirection has been demonstrated. 9. **Whether the properties were validly transferred inter vivos and therefore excluded from the estate** 10. A central issue in this appeal is whether parcels of land known as Kakamega/Lugari/1365 and 1366 formed part of the deceased’s estate or were lawfully transferred during his lifetime. 11. The Respondent’s case is that the said properties were transferred inter vivos and therefore ceased to constitute “free property” within the meaning of Section 3 of the Law of Succession Act. 12. The legal position is well settled that succession proceedings only concern the free property of a deceased person, that is, property over which the deceased had legal power of disposal at the time of death. 13. In ***Re Estate of Gedion Manthi Nzioka (Deceased) [2015] eKLR, the*** Court held that succession courts have no jurisdiction over property that was already validly transferred during the lifetime of the deceased. 14. Likewise, **in Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR**, it was reiterated that such property falls outside the estate unless the transfer is shown to be invalid. 15. However, the Court of Appeal in **Wambugu v Njuguna [1983] KLR 172** emphasized that a transfer of land is not complete in law until registration is effected in the land registry, and until such registration, ownership does not pass. 16. In the present case, while Land Control Board consents and transfer instruments were produced, there is no clear and conclusive evidence demonstrating that the transfer process was fully completed through registration. 17. The legal consequence of this is that the trial court ought to have made a clear and definitive finding on whether the alleged transfers were perfected in law or remained inchoate and whether it had jurisdiction to so find. 18. The failure to resolve this crucial legal question leaves uncertainty on whether the disputed properties were properly excluded from the estate or not. 19. **Whether allegations of forgery and mismanagement of estate funds were proved** 20. The Appellant alleged that signatures on certain consent documents were forged and that there was mismanagement and possible intermeddling with the deceased’s bank accounts and livestock proceeds. 21. The law is clear that allegations of fraud, forgery, or misrepresentation are of a serious nature and must be strictly proved with cogent evidence. 22. In **Koinange & 13 Others v Koinange [1986] KLR*,*** the Court held that fraud must be strictly proved and cannot be inferred from mere allegations. 23. Similarly, in **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR,** the Court stated that allegations of fraud must be proved to a standard higher than a balance of probabilities though not beyond reasonable doubt. 24. The Appellant did not tender any expert handwriting analysis, forensic report, or any other independent evidence to substantiate the claim of forgery. 25. Likewise, no bank statements, audit reports, or financial records were produced to support allegations of misappropriation or intermeddling with estate funds. 26. In the absence of such evidence, the trial court cannot be faulted for rejecting these allegations as unsubstantiated and speculative. 27. **Whether the estate was properly distributed under Sections 38 and 42 of the Law of Succession Act** 28. Section 38 of the Law of Succession Act provides that where an intestate has left children, the estate shall be divided equally among them. 29. Section 42 further provides that where a deceased person during his lifetime made gifts or advancements to any beneficiary, such benefits must be taken into account in determining final shares. 30. In **Rono v Rono & Another [2005] eKLR,** the Court of Appeal underscored that equality is the guiding principle in distribution of intestate estates, subject to consideration of prior benefits and special circumstances. 31. Further, **In Re Estate of Lerionka Ole Ntutu (Deceased) [2019] eKLR**, the Court held that courts must undertake a careful balancing exercise where prior benefits are alleged to ensure substantive fairness among beneficiaries. 32. In the present case, while the Respondent asserted that the Appellant had already benefited from East/Bunyore/885, the trial court did not conduct a detailed valuation or comparative analysis of the estate assets and prior benefits. 33. The absence of such structured analysis makes it difficult to ascertain whether the distribution achieved substantive equality as required by law. 34. The Court is therefore of the view that while the principle of equality may have been invoked, its practical application was not fully demonstrated in the manner required under Sections 38 and 42 of the Act. 35. **Whether the Appellant was unfairly disinherited** 36. The Appellant alleges that he was effectively disinherited from the estate. 37. The record, however, shows that the Appellant was allocated East/Bunyore/885, which the trial court considered as part of his entitlement. 38. In **Rono v Rono & Another**, the Court held that equality does not necessarily mean identical distribution but fairness in light of all relevant circumstances, including prior benefits. 39. On the basis of the record, the Court finds that the Appellant was not entirely disinherited. However, whether the overall distribution was fair remains dependent on a proper balancing of all assets, which was not fully undertaken by the trial court. 40. The Court finds partial merit in the appeal. 41. Accordingly, the Court orders: 42. The ruling of 2nd August 2023 is set aside; 43. The matter is remitted for rehearing of confirmation of grant; 44. The trial court shall properly determine on the disputed properties and if it has jurisdiction, and if it has to apply Sections 38 and 42; of the succession Act. 45. Each party to bear own costs. 46. Mention 24.6.2026 before the Chief Magistrate Kakamega for directions. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 10th DAY OF JUNE, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Angog’a/Velma Ms. Adongo for the Respondent present online. Ms. Wachakana for the Appellant absent.