https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8828

Kathenge v Mutham & 3 others (Civil Appeal E023 of 2024) [2026] KEHC 8828 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8828 (KLR) Republic of Kenya In the High Court at Kitui Civil Appeal E023 of 2024 LW Gitari, J June 18, 2026 Between Ferdinard Ndemah Kathenge Appellant and Catherine Mutham 1st Respondent Peter Kimbui Muthami 2nd Respondent Alex Muthami 3rd Respondent Irene Viata Muthami 4th Respondent Judgment Background 1.The respondents herein instituted a suit in Mutomo Principal Magistrate Court vide Succession Cause No E009 of 2022 seeking to administer the estate Ezikiel Muthami Kimbui alias Ezekiel Muthami Kimbui (deceased) and in their capacity as the wife and children of the deceased. 2.The appellant filed an affidavit of protest in objection to the issuance of a grant of letters of administration intestate dated 20.2.2023 and an application seeking conservertory orders and a declaration that half share of Plot No. 13 situated in Mutomo Market and Plot No. 3 situated in Kyatune forms part of the estate of the late Onesmus Kathenge Syengo (the appellant’s late father), among other prayers. 3.The respondents filed a Replying Affidavit to the affidavit of protest and the application, alongside a Notice of Preliminary Objection, both dated 14.4.2023. The respondents asserted that the Succession Court lacked jurisdiction and that the appellant lacked the locus standi to file the said applications in his capacity as a beneficiary of the estate of the late Onesmus Kathenge and not as a legal representative/administrator of the said estate. 4.The trial Court held that although the appellant herein has the locus standi to properly make the application, the Court lacks jurisdiction to determine whether the disputed property was jointly owned by the deceased herein and the appellant’s father, which is a preserve of the Environment and Land Court. The Appeal 5.The appellant, being dissatisfied with the ruling of the trial Court dated 28.3.2024, filed this appeal seeking that the ruling of the Lower Court be quashed, that the appellant be included as a beneficiary to the estate of Ezekiel Muthami Kimbui (deceased) and that he be included as a co-administrator of the estate. 6.The appellant lodges this appeal vide the Memorandum of Appeal dated 9.04.2024, premised on the following grounds:i.That the learned Magistrate erred in law and in fact in finding that the Appellant was not a beneficiary to the estate of the deceased.ii.That the learned Magistrate erred in law and in fact in failing to consider the fact that the Appellant was the actual beneficiary of said estate, since he is the actual beneficiary of plot number 3 situated at Kyatune Market, which the Appellant occupies.iii.That the learned Magistrate erred in law and in fact in failing to consider that the Respondent obtained the said grant without involving the Appellant as a beneficiary to the Estate of the deceased.iv.That the learned Magistrate erred in law and in fact in failing to consider that having the grant risks the Respondent selling and evicting the Appellant from the deceased person's estate, which the Appellant has occupied, developed and cultivated for a period of over forty years.v.That the learned Magistrate erred in law and in fact by considering the issue of ownership in her decision instead of the substantive issue of who had interests and/or rightful beneficiaries to the estate of the deceased person.vi.That the Learned Magistrate erred in law and in fact by failing to fully consider the oral evidence tendered before the court by the Appellant and his witnesses and that by the Respondent. 7.The appeal was canvassed by way of written submissions, as I have summarized below. Appellant’s Submissions 8.This appellant submits that the late Kathenge Syengo co-owned property with Muthami Kimbui, the father of the respondents. That the respondents filed the Succession Cause at Mutomo seeking to administer the estate of the said Muthami Kimbui, intentionally omitting Mutomo Plot No 13 which, formed part of the many properties that the late Onesmus Kathenge Syengo and Muthami Kimbui co-owned. 9.That the appellant had filed an affidavit of protest and annexed a letter from the then Kitui County Council dated 23rd of October 1973 addressed to both the two deceased persons to pay rent rates of Kshs 600, confirming that the two deceased persons co-owned the above-mentioned property. 10.That further, the County Government of Kitui Ministry of Lands, Housing and Urban Development wrote a letter to the late Muthami Kimbui, dated 13th of January 2023, requesting to confirm how Mutomo plot number 13 changed from being co-owned by the late Onsemus Kathenge Syengo father to the Appellant and the late Muthami Kimbui father to the respondents. 11.The appellant relies on Section 27 of the Law of Succession Act Cap 160 which states as follows:“In making provisions for a dependent, the Court shall have complete discretion to order a specific share of the estate to be given to the dependent or to make such other provision for him by way of periodical payments or lump sum and to impose such conditions as it deems fit.” 12.The appellant contends that from the documents tendered, they have illustrated that the grant was obtained by malicious misrepresentation hence the Grant should be revoked. 13.That the costs of this appeal be borne by the respondents. Respondent’s Submissions 14.The respondents submit that the firm of Mwinzi & Associates is not properly on record. They assert that although the party has the liberty to change their Advocates, the same should not be done without a Notice of Change, which the appellant failed to file. 15.They assert that the Record of Appeal dated 19.7.2024 is incomplete, hence incompetent. They contend that the appellant left out crucial documents and filed only those that he wished to rely upon. 16.Concerning the issue of jurisdiction, they maintain that issues of ownership of land are a preserve of the Environment and Land Court and as such, the trial Magistrate did not misdirect herself. 17.They dispute the appellant’s assertion that Plot No. 13, Mutomo, was jointly owned by the late Kathenge Syengo and the deceased, Ezekiel Muthami Kimbui. They maintain that the plot is presently registered solely in the name of Ezekiel Muthami Kimbui and contend that the appellant’s grievance relates to the manner in which that registration was effected. 18.They rely on the Court’s decision in the matter of Peter Igamba Njoroge, Nakuru Succession Cause No. 864 of 1996, where the Court held that the mandate of the Succession Court does not extend to determining issues of ownership of property. 19.The respondents submit that the trial Magistrate did not arrive at an erroneous conclusion when she upheld the Notice of Preliminary Objection. They assert that this appeal lacks merit and should therefore be dismissed with costs to the respondent. Analysis and Determination 20.I have considered the foregoing, the submissions filed on behalf of the parties herein and the authorities relied upon in support thereof. 21.This being a first appeal, this court is duty-bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. The Court in the case of Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123 held as follows:“..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 22.In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated 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 in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 23.In my view, the issues that arise for determination in this matter are:1.Whether the Probate Court had jurisdiction to determine the ownership of Plot No 13. Mutomo Market.2.Whether the appellant had the locus standi to file the objection.3.Whether the Record of Appeal ought to be struck out.4.Whether the Grant dated 13th of July 2023 should be revoked. Whether the Probate Court had jurisdiction to determine the ownership of Plot No 13. Mutomo Market. 24.The first issue concerns whether the Probate Court had jurisdiction to determine the ownership of Plot No. 13 Mutomo Market. 25.The Court of Appeal in owners of the motor vessel “Lillian s” vs. Caltex Oil (Kenya) ltd [1989]eKLR, stated:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 26.In the present case, the appellant contends that his late father was a co-owner of Plot No. 13 Mutomo Market. The respondents, however, dispute this assertion and maintain that the property is solely in the name of the deceased herein, one Ezekiel Muthami Kimbui. 27.Evidently, the ownership of the said plot is in dispute. The question is whether the Succession Court had the jurisdiction to determine its ownership. 28.In the case of Peter Igamba Njoroge, Nakuru Succession Cause No. 864 of 1996 (supra) cited by the respondents, the Court held as follows:“…even if there was materials established that there was such a trust, I doubt that the resolution of this issue would be matter of the Probate Court. The mandate of the Probate Court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and determination of trusts. It is not a matter of the probate Court being incompetent to deal with such issues but the provisions of the Law of Succession and the relevant subsidiary legislation do not provide a convenient mechanism for determination of some issues” 29.Article 162(2)(b) of the Constitution of Kenya provides as follows:“(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to :(b)the environment and the use and occupation of, and title to, land.” 30.Section 13(2) of the Environment and Land Court Act provides as follows:“(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.” 31.From the foregoing, it is clear that the jurisdiction of the Succession Court is to distribute the estate of the deceased to its rightful beneficiaries. Issues regarding ownership of the land are a preserve of the Environment and Land Court. I hence find that the trial Court while sitting as a Probate and Administration Court lacked jurisdiction to determine the ownership of Plot No. 13 Mutomo Market. The appellant ought to have moved to the right forum regarding the ownership of the property. Whether the appellant had the locus standi to file the objection. 32.The second issue is whether the appellant had the locus standi to file the objection regarding the said plots. 33.In Njau & 5 others v City Council of Nairobi [1983] KECA 56 (KLR), the Court of Appeal defined locus standi as follows:“The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding..” 34.Section 27 of the Law of Succession Act states as follows:“Discretion of court in making orderIn making provision for a dependent the court shall have complete discretion to order a specific share of the estate to be given to the dependent, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.” 35.Section 29(a) of the Law of Succession Act defines a dependent as:“the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death” 36.In the present case, the appellant in his Affidavit of Protest in Objection states that he is the son of the late Onesmus Kathenge Syengo. He further asserts that his father was a distant cousin of the deceased herein Ezekiel Muthami Kimbui who died on 17/6/2020. 37.The appellant submits that his father and the deceased herein were business partners and invested in buying various properties in which they had joint beneficial interests. The said properties include Mutomo Plot No. 13 at Mutomo Shopping Center and Plot No. 3 situated at Kyatune Market. 38.In light of the above, I find that the appellant had no locus standi to file an objection since he had not obtained a grant of Letters of Administration in the estate of the late Onesmus Kathenge Syengo. Section 54 of the Law of Succession Act Cap 160, Laws of Kenya provides that-“A Court may, according to the circumstances of each case limit a grant of representation which it has the jurisdiction to make…” 39.The appellant did not provide evidence to prove that he had obtained a grant of Letters of Administration in the estate of his late father to enable him to file proceedings to recover the properties of the estate of his father. He was therefore not properly before the Court. Whether the Record of Appeal ought to be struck out 40.The third issue is whether the Record of Appeal ought to be struck out 41.The respondents submit that the record of appeal is incomplete, hence incompetent and ought to be struck out. They assert that several documents are missing, including the Notice of Preliminary Objection dated 14.04.2023 and the parties’ submissions to the same. They also contend that the firm of Mwinzi & Associates did not file a Notice of Change of Advocates. 42.In the case of Pascale Mireille Baksh & another v Nishith Yogendra Patel [2009] eKLR (Civil Appeal (Application) 189 of 2007) the Court of Appeal held as follows:“As we have stated, striking out a record of appeal is such a draconian act that if an appeal can be salvaged, through introducing documents through supplementary record so be it. It is only in cases where the documents not included in the record are such vital documents that cannot be introduced through supplementary record rule 85 (2A) that the court would have no alternative but to strike out the record.” 43.In the present case, the documents identified by the respondents may properly be introduced through a Supplementary Record of Appeal. 44.However, though the respondents raised the issue, the appellant did not seek leave of the Court to file a supplementary record. The documents which were omitted were vital. The objection which was being considered in the application which this Court had to determine is whether the counsel for the appellant was properly on record. The record of the appeal was deficient and would have been struck out but parties argued the appeal and the Court had to give its ruling. Whether the Grant dated 13th July 2023 should be revoked. 45.The final issue concerns whether the Grant dated 13th July 2023 should be revoked. The law on revocation of Grants is provided for in Section 76 of the Law of Succession Act, which states that;“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 the making of a false statement or by the 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;d.that the person to whom the grant was made has failed, after due notice and without reasonable cause either-i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore.that the grant has become useless and inoperative through subsequent circumstances.” 46.The appellant contends that the Grant was obtained by malicious misrepresentation to the Court. He submits that the respondents obtained the grant without involving him as a beneficiary of the estate of the deceased herein. 47.The appellant as I have pointed out was not a beneficiary of the Estate of the deceased. The appellant filed an affidavit of protest which was premature as the respondents had not filed a summons for confirmation of grant and distribution of the estate. See Rule 40(6) of the Probate and Administration Rules which provides that a protest is filed to object to the summons for confirmation of Grant. The respondent had only obtained letters of administration and had not filed summons for confirmation of Grant. The Affidavit of Protest was not Properly before the Court. 48.I have perused the letters from the County Government of Kitui tendered into evidence by the appellant. Exhibit marked FNK 2A is one of the letters directed to the deceased herein Ezekiel Muthami Kimbui. The letter illustrates that Plot Number 13 Mutomo was formerly under the name KATHENGE/MUTAMI stores, but is currently solely under the name of Ezekiel Muthami Kimbui. James Mbarika, who is the Assistant Director in the Ministry of Lands, Housing and Urban Development, under the same letter, indicates that the office lacks any records of the transfer or subdivision of the plot. He further requests the deceased herein to furnish his office with a copy of the allotment letter and any evidence of paid rates before 2012 and transfer/subdivision documents of the plot. Be that as it may KATHENGE/MUTHAMI is more of a business name than a name of a proprietor of a piece of land. 49.Exhibit FNK 1C is a letter addressed to KATHENGE/MUTHAMI STORES from the County Government of Kitui. In the said letter, the County Government of Kitui demands payment of Arrears to Plot No 3 Kyatune, amounting to Ksh 11, 560/=. The 1st respondent, however, submitted that the said property did not belong to her husband. 50.In the case of Matheka & Another Vs Matheka [2005] KLR, the Court of Appeal set out the guiding principles for revocation of a Grant as follows; -“From the foregoing, it is clear that a grant may be revoked either by application by an interested party or on the Court’s own motion. But even when revocation is by the Court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of a false statement or by concealment of something material to the case, or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate. The grant may also be revoked if it can be shown to the Court that the person to whom the grant has been issued has failed to produce to the Court such inventory or account of administration as may be required.” 51.Having carefully considered the evidence on record, I am satisfied that a dispute as to the ownership of the said properties exists. However, as previously discussed under the first issue, the determination of questions relating to ownership and title to land falls within the jurisdiction of the Environment and Land Court. 52.The administrator averred that Plot No. 13 is the property of her late husband. The contrary has not been proved and therefore, for the purpose of the law of Succession Act, the Court has the Jurisdiction to distribute it to the beneficiaries unless the contrary is proved. The learned Magistrate held that she had no jurisdiction to determine issues of ownership of the plot and this was indeed the case. 53.In the circumstances, I find that the finding by the learned Magistrate cannot be faulted. The appeal is without merits and is dismissed with costs to the respondents. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2026......................LUCY GITARIJUDGE