https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10350

EWM v AWN (Family Appeal E017 of 2024) [2026] KEHC 10350 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 10350 (KLR) Republic of Kenya In the High Court at Nakuru Family Appeal E017 of 2024 JM Nang'ea, J July 8, 2026 Between EWM Appellant and AWN Respondent (Being an Appeal for an Order of the Chief Magistrate’s Court at Nakuru (Hon. Lina Akoth-SRM) arising from Ruling dated 7th November 2024 in MCSUCC MISC.E077/2024) Judgment 1.This Appeal challenges the lower Court’s Ruling dated 7/11/2024 on the Respondent’s Citation dated 20/3/2024 by which the Appellant and the Respondent were permitted to jointly obtain Grant of Letters of Administration Intestate in respect of the Estate of the deceased person in the proceedings before the court within a period of 60 days, in default of which the Respondent would be at liberty to obtain the Grant. 2.The Appellant was aggrieved by the Ruling and Order and lodged this Appeal vide Memorandum of Appeal dated 21/112024 based on grounds as hereunder;1.The Learned Magistrate erred in law and fact in proceeding to deliver a ruling on the Citor’s application dated 20th March 2024 when the application that was to come up for ruling on 7th November 2024 was the Citee’s application dated 20th March 2024 that sought to arrest the ruling on the Citor’s application dated 20th March 2024 and allow the Citee to cross examine the Citor on her affidavit in support of the application.2.The Learned Magistrate erred in law in delivering a ruling on the Citor’s application dated 20th March 2024 when there was a pending application by the Citee dated 24th September 2024, thus denying the Citee her non-derogable right to a fair hearing and right to cross examine her accuser under Article 50 of the Constitution.3.The Learned Magistrate erred in law and fact in finding that the Citor had proved the paternity of her two Children by way of Birth Certificates when;a.While a Birth Certificate may be admissible, it does not serve as conclusive proof of paternity, especially when paternity is disputed, as the Citee disputed herein.b.There was no evidence to corroborate the same, to wit, that the deceased maintained the said Minors, which evidentiary burden laid with the Citor/Respondent. (sic)4.The Learned Magistrate erred in law and fact in shifting the burden to disproving paternity on the Citee/Appellant when, where paternity is disputed, the burden of proving paternity rests with the party claiming paternity, in this case the Citor/Respondent. (sic)5.The Learned Magistrate exhibited bias by failing to render a ruling on the Citee’s unopposed application dated 24th September 2024 that would have granted the Citee an opportunity to disprove paternity by cross-examining the Citor on his affidavit in support of the application for citation.6.The Learned Magistrate erred in law and fact in ordering both the Citor and Citee to jointly obtain letters of administration when the issue of paternity of the Children of the Citor had not been proved by the Citor/Respondent.7.The Learned Magistrate erred in law and fact in ordering both the Citor and the Citee to jointly obtain letters of administration when the Citee/Appellant had not, either expressly or impliedly, renounced, disregarded or in any manner whatsoever, sought to relinquish her entitlement to obtain letters of administration in respect of her late husband’s estate. 3.The Appellant therefore craves these reliefs;1.This Appeal be allowed with costs.2.This Honourable Court sets aside the Ruling of the Subordinate Court delivered on 7th November 2024.3.This Honourable Court be pleased to substitute the finding of the Subordinate Court by making a finding that the Citee’s/Appellant’s Notice of Motion dated 24th September 2024 is allowed, and the issue of paternity of the two Children of the Citor/Respondent be determined by way of a viva-voce evidence before any Magistrate other than Hon. Lina Akoth. 4.Any further relief that the honourable court deems fit in the interest of justice. 4.The brief background to the Appeal is that the Respondent took out a Citation on 20/3 2024 asking the Appellant to obtain Grant of letters of Administration over her deceased husband’s Estate within 15 days from the date of the Citation, in default of which the court does allow the Respondent to petition for and receive the Grant herself. 5.The Respondent filed an affidavit in reply. In substance she disputes her alleged unwillingness to take out Grants of Letters of Administration in respect of the Estate of her deceased husband (David Maina Ngugi) explaining that the deceased had been unwell and suddenly died on 26/12/2023. The death plunged the family into a long period of mourning. 6.The Respondent denied the Appellant’s claim that she was the deceased’s wife. She also contests the allegation that the deceased sired any children with the Respondent and therefore denies that the latter has any lawful interest in the Estate. 7.Before the court could give its Ruling on the Citation, the Appellant brought the Application dated 24/9/2024 seeking to arrest delivery of the Ruling and leave to cross examine the Respondent on her affidavit evidence. The record does not show that this Application was heard and determined. 8.In her impugned Ruling, the learned trial magistrate referred to the Citation of 20/3/2024 and found that the Respondent had;“Proven her interest in the Estate of the deceased by dint of her children having been sired by the deceased. As regards her marriage to the deceased and whether she is entitled as a beneficiary, that can only be determined in a substantive Succession Suit.” 9.The lower court also appeared to be satisfied that the Respondent proved that the deceased was her children’s father. The court then proceeded to allow the parties to jointly obtain Grant of Letters of Administration within 60 days from the date of the Ruling, failure to which the Respondent could herself obtain the Grant. The Ruling does not seem to address the Appellant’s Application dated 24/9/2024 supra as earlier observed in this Ruling. 10.Both parties filed submissions. The Appellant submits in a nutshell that the Ruling of 7/11/2024 was supposed to be in respect of her Application dated 24/9/2024 for arrest of delivery of the court’s Ruling on the Citation Application filed on 20/3/2024. The Respondent did not respond to the Application dated 24/9/2024 and /or file submissions thereon and so it ought to have been granted to facilitate the desired cross-examination before the court ruled on the Citation, according to the Appellant. 11.In her submissions, the Respondent through her Advocates inter alia contends that the Appellant was not denied the right of hearing. Regarding the paternity issue, the court is told that a Birth Certificate indicating a person’s parents is prima facie evidence of paternity unless the evidence is dislodged by DNA profiling. The Respondent’s Advocates point out that the DNA analysis has not been done to disprove the Respondent’s claim, (see Re Estate of James Maina Ngige (Deceased) Succession Cause 2828 of 2014 [2024} KEHC 8112 (KLR) (Family) (21 June 2024) (Judgment) cited by Counsel. 12.It is trite law that a first appellate court has the duty of re-assessing the evidence and reaching its own conclusions on matters of fact and law. The court will only interfere with the trial court’s findings if relevant factors were not taken into account or irrelevant factors were considered or the trial court otherwise misdirected itself. (see case law in Selle vs Associated Boat Company [1968] EA 123 and Ocean Freight Shipping Co. Ltd vs Oakdale Commodities Ltd (1997) eKLR. The Court of Appeal for East Africa in Peters vs Sunday Post Limited [1958] EA 424 underscored the same principles delivering itself thus:“i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” 13.I have considered the rival arguments of the parties as well as Counsel submissions and the record. Whereas it would appear from the record that the Ruling of 7/11/2024 was in respect of the Respondent’s Citation filed on 20/3/2024, the Court was actually expected to decide on the Appellant’s Application dated 24/9/2024 seeking to arrest the Ruling, first. The latter Application which sought to cross-examine the Respondent on her affidavit does not seem to have been disposed of. The Appellant’s contention that her constitutional and legal right to be heard was infringed, is not therefore misplaced. 14.Moreover, the court was not at that stage to conclusively determine the parties’ rights of succession to the deceased’s Estate. The Respondent’s Citation of 20/3/2024 only challenged the Appellant to take out Grant of Letters of Administration over the deceased’s Estate or give consent to the Respondent to obtain the Grant. Upon the Appellant’s reply, the court was only to decide whether or not to allow the Respondent to herself move the court for the Grant, or give other directions deemed it. The parties’ substantive rights in relation to the dispute were not to be determined in the Citation. Such litigation could only be canvassed in any Succession Cause that is eventually filed, as contended by the Appellant. 15.The Learned trial magistrate therefore erred and/or misdirected herself, her appointment of the Respondent as an Administratix could only be done in a substantive Succession Cause. On the material before the court, the issue of paternity of the Respondent’s children could not also be decided in the Citation. This is a matter of evidence in the substantive proceedings. 16.In the result, the Appeal is allowed as hereunder;a.The lower court’s Ruling of 7/11/2024 and ensuing Order are set aside.b.The Respondent’s Citation filed on 20/3/3024 and the Appellant’s Notice of Motion dated 24/9/2024 are directed to be heard de novo and determined before any other court with competent jurisdiction, other than Hon. Linah Akoth (SRM).c.The parties shall bear their own costs of the Appeal.d.Judgment accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF JULY, 2026.J.M NANG’EA, JUDGE.In the presence of;Appellants’ advocate, Mr. Ochieng for Mr. Kigata.Respondent’s Advocate, Mr. Mwangangi for Mr. Chege.Court Assistant (Jeniffer).