https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8060

Bundotich alias David Limo Bundotich v Bundotich (Family Appeal E002 of 2024) [2026] KEHC 8060 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8060 (KLR) Republic of Kenya In the High Court at Iten Family Appeal E002 of 2024 JRA Wananda, J June 5, 2026 Between David Kimaiyo Bundotich alias David Limo Bundotich Appellant and Ezekiel Bundotich Respondent (Appeal from the Ruling dated 22/10/2024 delivered in Iten Senior Principal Magistrate’s Court Succession Cause No. E075 of 2023 by Hon. E. Kigen - SPM) Judgment 1.This Appeal arises from the Ruling delivered in the said Magistrate’s Court Succession Cause in which the trial Court held as follows:“What is before Court for determination is whether the land parcel No. Mosop/Kapchorwa/222 forms part of the estate of the deceased Kimugul Bundotich.From the evidence adduced in Court and the documentary evidence herein, I find that the above quoted parcel of land parcel forms part of the estate of the deceased as the issue was determined by the Court.The Protest lacks basis and the same is hereby dismissed with no order on costs being a family dispute.” 2.The background of this matter is that the deceased, Bundotich Kimugul, died on 17/06/2019 at the age of 90 years. By the Petition dated 22/06/2023 filed through Messrs Anassi Momanyi & Co. Advocates, the Respondent, Ezekiel Bundotich, describing himself as a son of the deceased, applied for Grant of Letters of Administration to manage the estate of the deceased. In the Petition, he listed a total 13 survivors of the deceased, including himself, and 4 parcels of land as comprising the estate. The Grant dated 12/10/2006 was then issued to the Respondent as Administrator. 3.The Respondent then applied for Confirmation of the Grant. However, before the Application could be heard, the Appellant filed a Protest challenging inclusion of the parcel of land known as Mosop/Kapchorwa/222 (hereinafter referred as “the property”) in the list of properties comprising the estate of the deceased. In the Affidavit of Protest he swore on 14/06/2024, filed through his Advocates, Messrs Wambua Kigamwa & Co., he deponed that the property is owned by him, and is therefore not available for distribution as part of the estate of the deceased. He stated that the property was initially part of the estate of one the late Kimugul Simnyei, whose Succession was carried out in Iten SPM Succession Cause No. E05 of 2022, in which the law firm of Messrs Anassi Momanyi & Co. Advocates, the same law firm representing the Respondent herein was involved. He deponed that the property was, in the said earlier Succession Cause, distributed to him and one Joseph Kibengi Bargoiyet pursuant to a consent recorded therein, and contended that the property having been the subject of the earlier Succession Cause in which a binding decision thereon was made in his favour, cannot again be the subject of distribution in the new Cause. He asserted that the property was distributed to him, not as a trustee for the estate of the deceased herein, but to him exclusively, the entire 4,424 acres. He deponed further that the Respondent, as the Administrator, is well aware that the estate herein has no interest in the said property, as it is a matter that was discussed in the Respondent’s presence during a meeting with the area Chief on 22/07/2023, and the Respondent and other beneficiaries of the estate herein even signed the minutes of the meeting confirming the above account of events. He therefore prayed that the property be excluded from the list of assets presented as available for distribution in this Succession Cause. 4.The Protest was opposed by the Respondent by way of the Affidavit he swore on 27/06/2024, in which he denied that the property L.R. No. Mosop/Kapchorua/1166, which was sub-divided from L.R. No. Mosop/Kapchorwa/222, ought to be excluded from the estate herein. He insisted that the Appellant is just but a trustee of the property measuring 4.44 acres, for himself and his siblings who are all beneficiaries of the estate herein. He contended that the earlier Iten SPM Court Succession Cause E005 of 2020 was in respect of their grandfather’s estate, and what the Appellant obtained therein was their late father’s (deceased herein) share on behalf of all other beneficiaries. He, too, pointed out that the same law firm acting for the Appellant in this Succession Cause is the same one that represented the Appellant in the said earlier Succession Cause, and is therefore aware of the above facts. He therefore termed the Protest as lacking any legal or factual basis. 5.The matter then proceeded for viva voce trial in which both the Appellant and the Respondent testified. They however basically restated the matters captured in their already recounted Affidavits. At the end of the hearing, the trial Court rendered its Judgment as aforesaid. Dissatisfied with the decision, the Appellant filed this appeal by way of the Memorandum dated 21/11/2024, premised on the following 5 grounds:i.The Learned Magistrate erred in law and fact in finding that the land parcel known as Mosop/Kaapchorwa/222 constituted part of the estate of the deceased as opposed to being the Appellant’s property.ii.The Learned Magistrate erred in law and fact in failing to find that the amended certificate of confirmation of grant was the current position on ownership of the property known as Mosop/Kapchorwa/222 constituted and not the ruling delivered on 15/03/2023.iii.That the Learned Magistrate erred in law and in fact in failing to find that the Appellant was not a Trustee of the estate of the late Bundotich Kimugul-deceased.iv.The Learned trial Magistrate erred in law and fact in failing to find that the Respondent was estopped from denying that the property known as Mosop/Kapchorwa/222 belonged solely to the Appellant.v.That the learned trial Magistrate erred in law and in fact in failing to find that the issue of the property known as Mosop/Kapchorwa/222 being trust property or otherwise was a matter to be resolved by the Environment and Land Court. 6.The Appeal was then canvassed by way of written Submissions. The Appellant’s Submissions is dated 31/01/2026, while the Respondent’s is dated 9/10/2025. Appellant’s Submissions 7.Mr. Mogambi, Counsel for the Appellant, in his brief Submissions, acknowledged that the Appellant, by the Ruling dated 15/03/2023 delivered in Iten SPM Succession Cause No. E005 of 2022- Estate of the late Kimulgul Simnyei, was to hold “in trust” for himself and for his siblings, the equal share distributed to his father (the deceased herein) but reiterated that the Ruling was reviewed by consent, after meetings with, and deliberations made with members of the family, and the part of the Appellant holding the share “in trust” for siblings removed. He reiterated that pursuant thereto, the confirmed Grant dated 30/12/2023 was issued by the Court, and which excluded the holding “in trust” part. He contended that as such, there is in existence a lawfully adopted consent order in Iten SPM Succession Cause No. E005 of 2022, which binds the Respondent, and which he cannot negate. He therefore insisted that the Appellant is now the sole and exclusive proprietor of the property. He also urged that in any event, the issue of “constructive trust” alleged by the Respondent is a matter is vested in the Environment and Land Court, which is the forum with the Jurisdiction to determine it. Respondent’s Submissions 8.Mr. Wainaina, Counsel for the Respondent, in his equally brief Submissions, basically recited the history and facts already recounted above and defended the trial Court’s Ruling terming as correct its declaration of the subject property as being available for distribution in the estate of the deceased herein. He however pointed out that the trial Court erroneously referred to the property in question as L.R. No. Mosop/Kapchorwa/222, instead of the resultant parcel L.R. No. Mosop/Kapchorwa/872 held by the Appellant as trustee for the estate of the parties’ late father (the deceased herein), which error he however termed as immaterial to the final substantive Judgment. He then cited several authorities to support his contention that a “constructive trust” arose out of the Appellant’s holding the property in trust for his siblings. Determination 9.As reiterated in a plethora of cases, this being a first appellate Court, it has the duty to evaluate, re-assess and re-analyze the evidence before the trial Court, and draw its own conclusion (see for instance, the case of Kenya Ports Authority vs Kuston (Kenya) Ltd [2009] 2 EA 212. 10.The issue for determination in this Appeal is evidently “whether the trial Court was justified to rule, as it did, that the subject property forms part of the estate of the deceased herein, and therefore available for distribution as such”. 11.The two parties are brothers, and they agree that their grandfather’s estate comprising of the parcel of land known as Mosop/Kapchorua/222 was distributed in Iten SPM Succession Cause No. E05 of 2022-Estate of the lateKimugul Simnyei. The parties agree that by way of the Ruling dated 13/03/2023 and delivered in the said Succession Cause, the estate of their grandfather was distributed equally, at 3,212 acres each, between an uncle on one part, and the Appellant, to hold “as a trustee for the estate of Bundotich Kimugul”, on the other part. It is not in dispute that the late Bundotich Kimugul, is the parties’ father, himself a son of the said the late Kimugul Simnyei (the parties’ grandfather). The parties also agree that a subsequent consent letter dated 29/09/2023 signed by the Advocates on record in that Succession Cause, and also by the Appellant and other individuals, was subsequently filed in the said Succession Cause reviewing the distribution made in the Ruling, and which consent was then adopted as an order of the Court. I also gather that, incidentally, the two law firms on record in this matter were also on record in that earlier Succession Cause. It has however not been revealed whether the Respondent was also a party in the said Succession Cause. Be that as it may, it is agreed that pursuant to the consent, the Certificate of Confirmation of Grant dated 9/11/2023 was then issued, whose purport, as set out in the consent, was to increase the share distributed to the Appellant to 4,424 acres, and leave the uncle with only 2 acres. 12.I understand the Appellant’s argument to be that the portion of the Ruling declaring that he was to hold the share “as a trustee for the estate of Bundotich Kimugul”, was omitted under the said consent order. Unless I am missing something from the facts, arguments and documents presented, I completely cannot understand the basis of this contention since the copies of the Certificate of Confirmation of Grant dated 9/11/2023 exhibited by both parties reveals that the Certificate, as before, still retained the stipulation that the share in question was distributed to the Appellant to hold “as a trustee for the estate of Bundotich Kimugul”. All that I observe to have been reviewed or changed in the consent letter is the acreage distribution as between the uncle and the Appellant, nothing else. I am therefore at a loss as to what foundation the Appellant is basing his contention that the consent converted him into the sole or exclusive owner of the entire share to the exclusion of his siblings? 13.The Appellant, in attempting to demonstrate that the “as a trustee for the estate of Bundotich Kimugul” portion was omitted after family deliberations, referred the Court to the alleged minutes of the family meeting held on 22/07/2023. However, even a casual perusal of those minutes reveals that at no point in the deliberations was review or change of the Appellant holding the father’s share “as a trustee” discussed. That is a pure creation of the Appellant. Even assuming that any such review or changed was discussed or sanctioned, it clearly never found its way into the Certificate of Confirmation of Grant dated 9/11/2023 issued therefrom. 14.Considering the above circumstances, it is clear that the Protest was justifiably dismissed by the trial Court as it was a frivolous endevour. It is unclear why the Appellant, despite the clear and express Ruling made in Iten SPM Succession Cause No. E005 of 2022 still wants to push on with his ill-advised and unjustified attempts to take and keep the entire family share to himself, and by doing so, disinherit all his siblings. He should have appealed against that part of the decision made in Iten SPM Succession Cause No. E005 of 2022 if he felt aggrieved by it, not to mislead the Court by attempting to introduce non-existent amendments into a Court decision already delivered. 15.This was clearly a hopeless and frivolous Appeal that should never have been pursued at all. All it has done is to waste precious judicial time and resources. Final Orders 16.In the circumstances, this Appeal fails, and is accordingly dismissed with costs to the Respondent considering its extent of frivolity. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026…………………...……..WANANDA JOHN R ANUROJUDGEDelivered in the presence of:Ms. Kiprop for the AppellantMs. Wainaina for the RespondentCourt Assistant: Rodgers Tshombe