Obando v Juma (Civil Appeal E181 of 2024) [2026] KEHC 6595 (KLR) (11 May 2026) (Judgment)

Obando v Juma (Civil Appeal E181 of 2024) [2026] KEHC 6595 (KLR) (11 May 2026) (Judgment) Neutral citation: [2026] KEHC 6595 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E181 of 2024 S Mbungi, J May 11, 2026 Between Esther Naliaka Obando Appellant and Ketruda Adhiambo Juma Respondent Judgment 1.This Appeal arises from the Ruling of the subordinate court in a succession cause No 44B of 2016 concerning the Estate of the late Chuma Musiani Sipriano (Deceased). The Appellant, being dissatisfied with the decision of the trial court on confirmation and distribution of the estate, lodged the present appeal. 2.The Appellant faults the learned trial magistrate for, inter alia:I.Confirming the grant allegedly without compliance with Rule 40(8) of the Probate and Administration Rules;II.Failing to properly evaluate the evidence tendered;III.Distributing the estate on the erroneous assumption that the deceased had settled the two houses on separate parcels of land;IV.Awarding the Appellant’s house, the parcel known as North Wanga/Mayoni/518 while the Appellant resides on North Wanga/Indangalasia/18 where her deceased husband was buried. 3.The Respondent opposes the appeal and urges the court to uphold the distribution by the trial court on grounds that the deceased had during his lifetime settled the two houses separately and that the distribution complied with Section 40 of the Law of Succession Act. 4.This being a first appeal, this court is obligated to re-evaluate and reconsider the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. 5.In Selle & Another v Associated Motor Boat Co. Ltd & Others the Court held that:‘An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts are well settled…’ 6.Similarly, in Peters v Sunday Post Limited the court emphasized the duty of a first appellate court to reconsider the evidence and draw its own conclusions. Issues for Determination 7.The issues arising for determination are:a.Whether the confirmation proceedings complied with Rule 40(8) of the Probate and Administration Rules;b.Whether the learned trial magistrate properly evaluated the evidence on record;a.Whether the distribution of the estate was lawful and equitable under Section 40 of the Law of Succession Act;b.Whether the Appeal has merit. Analysis and determination. Whether the confirmation proceedings complied with Rule 40(8) of the Probate and Administration Rules; 8.Rule 40(8) of the Probate and Administration Rules provides that where beneficiaries do not consent to the proposed distribution, the matter shall proceed for directions and determination by the court. 9.The Appellant argues that no Form 37 consents were filed and therefore the confirmation proceedings were fatally defective. 10.The court has considered the record and notes that although no universal consent was filed, the dispute proceeded by way of viva voce evidence after parties filed rival affidavits and proposed modes of distribution. The parties testified and were cross-examined before the court rendered its determination. 11.The purpose of Rule 40(8) is to ensure that beneficiaries are aware of and participate in the confirmation proceedings. 12.In re Estate of Ibrahim Likabo Miheso (Deceased) the court emphasized the importance of filing consents under Rule 40(8) of the Probate and Administration Rules. 13.Likewise, in Beatrice Mbeere Njiru v Alexander Nyaga Njiru the court held that filing of consent is mandatory before uncontested confirmation proceedings. 14.However, where there is protest and parties fully participate in the hearing, failure to file Form 37 is not necessarily fatal if no prejudice is occasioned. 15.This court finds that both parties actively participated in the proceedings and tendered evidence. The dispute was therefore substantively heard on merits. Consequently, the omission did not occasion miscarriage of justice sufficient to nullify the proceedings. Whether the learned trial magistrate properly evaluated the evidence on record 16.The Appellant contends that the trial court ignored her evidence and that of her witnesses regarding occupation of the NORTH WANGA/INDANGALASIA/18. 17.The record shows that the trial court considered the evidence from both sides and specifically noted the Appellant’s admission during cross-examination that the deceased had settled the two houses on separate parcels of land. 18.A trial court is not obligated to reproduce verbatim the testimony of every witness so long as the judgment demonstrates consideration of the evidence tendered. 19.In Mbogo & Another v Shah the court held that an appellate court should not interfere with the exercise of discretion unless it is shown that the trial court misdirected itself or arrived at a plainly wrong conclusion. 20.This court is not persuaded that the learned magistrate failed to consider the evidence on record. Whether the distribution complied with Section 40 of the Law of Succession Act 21.Section 40 of the Law of Succession Act governs distribution of intestate estates in polygamous families.The evidence on record established that the deceased had two wives,the first house occupied the North Wanga/Indangalasia/18, the second house occupied the North Wanga/Manyoni/518 land and the parcels were approximately similar in acreage. 22.The learned magistrate concluded that the deceased had substantially settled the two houses during his lifetime and maintained that arrangement. In Rono v Rono & Another the Court of Appeal held that distribution in succession matters should be guided by fairness and the circumstances of each case and that equality does not always mean equal shares. 23.Further, In re Estate of M’Ngarithi M’Miriti (Deceased) the court reiterated that courts should consider the circumstances of each house in a polygamous family when distributing an estate. The Appellant argues that she resides on the Indangalasia land where her husband is buried and that relocation would occasion hardship. 24.While the court appreciates the sentimental attachment to the burial site of her late husband, the evidence on record does not establish that the Appellant was exclusively entitled to four acres of the Indangalasia land.The trial court sought to preserve the integrity of each house as established by the deceased during his lifetime. 25.This court finds no sufficient basis to interfere with that finding.DeterminationHaving reconsidered the evidence, submissions and applicable law, this court finds that:1.The confirmation proceedings substantially complied with the law despite absence of unanimous consent;2.The learned trial magistrate properly evaluated the evidence;3.The distribution of the estate was consistent with Section 40 of the Law of Succession Act and the circumstances of the estate;4.The Appeal lacks merit.Accordingly, the court orders that:i.Appeal is hereby dismissed.ii.The Ruling of the subordinate court is hereby upheld.iii.Each party shall bear their own costs of the Appeal owing to the family nature of the dispute.iv.Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 11TH DAY OF MAY, 2026.S.N. MBUNGIJUDGEIn the presence of:CA: Agong’a/Velma.Mr. Were for the Appellant present virtually.Mr. Mugoye for the Respondent present.