Mululu v Barasa & 2 others (Probate & Administration Appeal E002 of 2024) [2026] KEHC 5500 (KLR) (16 April 2026) (Judgment)

Mululu v Barasa & 2 others (Probate & Administration Appeal E002 of 2024) [2026] KEHC 5500 (KLR) (16 April 2026) (Judgment) Neutral citation: [2026] KEHC 5500 (KLR) Republic of Kenya In the High Court at Bungoma Probate & Administration Appeal E002 of 2024 REA Ougo, J April 16, 2026 Between Duncan Barasa Mululu Appellant and Henry Kikwameti Barasa 1st Respondent Gamaliel N Watila 2nd Respondent John Khapesi Wakoli 3rd Respondent (Being an appeal against the judgment of Hon. C.A.S. Mutai SPM delivered on the 25/8/2023 in Bungoma Succession Cause No. 115 of 2017) Judgment 1.The respondents herein, who were objectors before the trial court, moved the trial court by summons to revoke the grant dated 15/4/2019, seeking to revoke the letters of administration issued to the appellant herein on 17/9/2004 and confirmed on 29/6/2017. The respondents also sought an order enjoining them as beneficiaries of the deceased’s estate. 2.In response, the appellant filed a replying affidavit, sworn on 5/12/2019, in opposition to the Summons seeking revocation of the grant, in which he admitted selling part of the deceased’s estate and leasing the rest. 3.In his judgment, the trial magistrate found that the appellant obtained a Certificate of Grant for the deceased’s estate by concealing material from the court. The trial magistrate thus allowed the respondents’ summons as prayed. 4.Aggrieved by the said decision, the appellant filed a memorandum of appeal dated 22/3/2024, raising the following grounds of appeal.a.The learned trial magistrate erred in law and fact when he recalled the grant made to the appellant on the 29/6/2017 and/or annulled the same.b.The learned trial magistrate erred in law when he failed to find that the respondents were mere intermeddlers in the estate of the deceased who had contravened the mandatory provisions of section 45 (1) of the Law of Succession Act.c.The learned trial magistrate erred in delivering a judgement which in effect disinherited the children of the deceased who were the rightful beneficiaries and substituted them with absolute strangers to the estate.d.The learned trial magistrate erred in law and in not finding that the land sale agreements between the appellant and the respondents were illegal, null and void and unenforceable.e.The learned trial magistrate erred in law and in fact in not finding that listing the respondents as beneficiaries in the affidavit in support of the petition was unlawful.f.The learned trial magistrate erred in law and in fact when he enjoined the respondents as the beneficiaries in the estate of the deceased Mark Mululu Walunywa. 5.The appeal was disposed of by way of written submissions. At the time of writing this judgment, only the appellant’s submissions were on record. I have considered them. 6.The appellant submitted that the respondents were not interested parties within the meaning of section 76 of the Law of Succession Act, as they purchased part of the deceased’s estate after his death. That the respondents’ purchase of the suit property amounted to intermeddling contrary to section 45 of the Law of Succession. That the trial court’s decision to enjoin the respondents as beneficiaries of the deceased’s estate had no basis. That the land sale agreements relied on by the trial court were null and void ab initio. That listing the respondents as beneficiaries did not deprive the court of the discretion to determine who were the genuine beneficiaries. 7.The duty of this court, as the first appellate court, is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. Further, this court ought not to ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. Analysis And Determination 8.I have re-evaluated the evidence which was tendered before the trial court and also perused the pleadings which were before the learned trial magistrate. 9.Henry Barasa Kikwameti, the 1st respondent, testified as Pw1. He adopted his statement dated 14/2/2020 as his evidence in chief. He testified that the appellant sold him land and that he was seeking his share of the land. In cross-examination, the 1st respondent testified that he bought parts of the suit land, East Bukusu North Kanduyi/630, from the appellant. He further stated that, at the time of purchase, he conducted a search and confirmed that the land was registered in the names of the deceased, Mark Mululu Wanyonyi. He also stated that, at the time of purchase, the succession had not been concluded, and that he had never sued the appellant for a refund of the purchase price. In re-examination, Dw1 testified that the appellant recognised him as one of the beneficiaries of the deceased. 10.Peter Wanjala Mukhwana testified as Pw2. He adopted his statement dated 14/2/2020 as his evidence in chief. He testified that he was a witness to the sale agreement. The appellant sold him 1 acre of the land in 1995. In cross-examination, he further testified that he moved out of the piece of land in the year 2000 and sold it to Pw1, and that the land was registered in the name of a 3rd party. 11.Silus Simiyu Wekesa gave evidence as Pw3. He adopted his witness statement dated 14/2/2020 as his evidence in chief. He stated that he bought ½ an acre of land from the appellant and later sold it to Dw1. In cross-examination, he stated that the land was registered in the deceased’s name. 12.Pw4 Boniface Wanyonyi testified that the appellant, his neighbour, sold a piece of land to Dw1, and that the land was registered in the name of the deceased, Mark Mululu. 13.The 2nd respondent, Gamaliel N. Watila, testified as Pw5. He stated that he bought a piece of land measuring ¾ of an acre from the appellant in 2001 and paid him Kshs. 50,000/- in cash. He further stated that he had since planted trees on the land, though he had not built on it. The land was initially registered in the name of Mark Mululu Walunywa, the appellant’s father. He stated that he was only claiming what he had bought. 14.Pw6 Rodger Wamalwa Wabulla and Pw7 Charles Wepukhulu Walunywa gave evidence in corroboration of Pw5’s testimony, stating that he introduced Dw5 to the appellant and that he was present when they entered into the sale agreement. He admitted in cross-examination that the land belonged to the deceased herein. 15.The 3rd respondent, John Khapesi Wakoli, testified as Pw8. He stated that he bought 2/3 of an acre from the appellant. He further stated that, at the time, the land was registered in the names of the deceased herein, and that he had built on the land. In cross-examination, he stated that he had filed Bungoma ELC No. 62 of 2021, claiming the suit land. 16.His testimony was corroborated by the testimonies of Pw9, Peter Wanjala Mukhwana, Pw10, Reuben Simiyu and Pw11, Boniface Wanyonyi Wekesa. 17.The appellant gave evidence in support of his case as Dw1. He adopted his statement dated 9/9/2020 as his evidence in chief and his list of exhibits of the same date as his exhibits. In cross-examination, the appellant admitted that he sold land to the 3 respondents, with ¼ to the 1st respondent, 5/8 of an acre to the 2nd respondent, and ¼ to the 3rd respondent, all from his share of the suit land. He further stated that the transactions were in writing; that the 1st and 3rd respondents lived within the suit land, whereas the 2nd respondent cultivated his portion. He also leased parts of the land to the respondents at Kshs. 2,000 per year, though there was no lease agreement. In re-examination, he stated that he was willing to give the respondents a total of 2 acres, which he sold them out of his share of the deceased’s estate. 18.Anne Wanjala testified as Dw2. It was his testimony that he was the appellant’s sister. That she was married in Sikusi and would occasionally visit her brother. That the deceased, her father, gave her ½ an acre from the suit land. However, the last time she visited the land was in 1995. 19.The testimony of Dw2 was similar to that of Dw4, Helen Machuma Mululu, and Dw5, Joan Wanyama Namukoko, the appellant’s other sisters. 20.I have considered all the evidence herein. The impugned judgment arose from an application to revoke the grant brought by the respondents, who asserted that they had an interest in the deceased’s estate, having acquired a share of the suit land from the appellant. 21.Revocation/annulment of grants is provided for in Section 76 of Cap 160 as follows: -“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion:-(a)That the proceedings to obtain the grant were defective in substance;(b)That the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case;(c)That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently: 22.Mark Mululu Walunywa (the deceased) died on the 26/3/1995. Letters of administration were issued to the appellant herein on 17/9/2004 and confirmed on 29/6/2017. The deceased’s estate consisted of Land Parcel No. E. Bukusu/N. Kanduyi/630. 23.The respondents herein were listed as liabilities of the deceased’s estate in Form P&A 5, which the appellant relied on in his application for Letters of Administration Intestate. They based their claim to have been beneficiaries of the deceased’s estate on this fact and on their purchase of shares in the deceased’s estate. 24.It is not disputed that the appellant sold parts of the deceased’s estate to the respondents herein. At the time of these sales, the grant issued to the appellant had not yet been confirmed. 25.Section 45 of the Law of Succession Act provides that:“45 (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a decease person.(2)Any person who contravenes the provisions of this Section shall-(a)Be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)Be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.” 26.From the respondents’ own case, it is clear that their purported purchase of the suit land occurred before the confirmation of the grant issued to the administrator. All the respondents testified that, at the time they bought parts of the suit land from the appellant, they were well aware that it was still registered in the deceased’s name. 27.The above-cited provision of the law is clear that no one is entitled to intermeddle with any free property of a deceased person. There are sanctions for any such intermeddling. Intermeddling includes taking possession of, disposing of, or even trespassing on the property of a deceased person. 28.In this regard, any act done in contravention of section 45 of the Law of Succession Act is unlawful and cannot stand. In the case of Muriuki Musa Hassan v Rose Kanyua and 4 Others (2014) eKLR, the Court was faced with a situation involving the sale of a property before succession. Makau J stated as follows, and I agree:“The interested parties are not direct creditors of the deceased before his death but purchasers from one of the deceased beneficiaries and the sale of the land to them is challenged in this application. In such circumstances the interested parties interest cannot be considered in this matter and the remedy for them if they would be aggrieved by final court’s decision and distribution, is to file suit against the said Muriuki Musa Hassan. That in any event, Muriuki Musa Hassan is entitled to share of the deceased estate and he will definitely be interested in the interested parties interest so as to legitimize the sale of the land to the interested parties.” 29.In the present case, as earlier stated, the respondents purchased land from the administrator before the grant issued to the administrator was confirmed. Section 82(b)(11) of the Law of Succession Act is clear that: “No immovable property shall be sold before confirmation of Grant.” 30.Thus, at that time, the administrator had no legal authority or power to dispose of the deceased’s estate. It follows that the respondents cannot be said to be creditors of that estate. They assisted the administrator in intermeddling with the deceased’s estate. They can only engage the administrator in the latter’s personal capacity for redress and cannot hold the deceased’s estate to account. 31.Consequently, as intermeddlers, the respondents lacked locus standi to file the summons seeking revocation of the grant dated 15/4/2019. The trial court ought not to have entertained them. The mere fact that they were listed as liabilities of the deceased’s estate in P&A Form 5 did not justify the illegal actions. 32.In the circumstances, I hereby set aside the decision of the trial court as set out in the judgement entered on 25/8/2023. I find that the summons for revocation of grant dated 15/4/2019 lacked merit, and I proceed to dismiss it. Each party to bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF APRIL 2026.R.E. OUGOJUDGEIn the presence of:Appellant- AbsentMiss Natwati -For the RespondentsWilkister/Adan - C/A