https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11986

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. 57 OF 2019** **EUNICE WARWARE GIKUNJU……………………….………1ST APPELLANT** **SICILY WAMBURA GIKUNJU...................................................2ND APPELLANT** **MILKA WAWIRA BUNDI............................................................3RD APPELLANT** **VERSUS** **JOSEPH MUGANE GIKUNJU…….……........……...………..1ST RESPONDENT** **CYRUS WACHIRA MURIITHI……………...….……………2ND RESPONDENT** *(Being an appeal from the Ruling of Hon. E.O Wambo (S.R.M) in Kerugoya Succession Cause No. 164 of 2010 delivered on 5/7/2019)* **JUDGMENT** *Introduction* 1. On 22/2/2019, the 1st Respondent filed a Notice of Motion seeking stay of execution and review of the ruling of 19/2/2019, on the ground that the 2nd Respondent was not his biological son, as alleged. 2. The 1st Respondent swore further affidavits on 17/4/2019 and 23/4/2019 in support of his application. 3. The 1st Appellant swore a replying affidavit on 25/3/2019 in opposition to the application. She reiterated that the 1st Respondent was her brother while the 2nd Respondent was a son of the 1st Respondent, and the case had been finalized. She averred that the 1st Respondent had acted contrary to the advice of the court, and the application was thus an afterthought and unfounded. 4. The 1st Appellant swore an amended replying affidavit on 5/5/2019 urging that their deceased mother had indeed bequeathed the 2nd Respondent ¼ acre of **L.R No. Kabare/Kiritine/60 (henceforth called the suit property)** during her lifetime, which he had extensively developed over the last 17 years. 5. The 2nd Respondent swore a replying affidavit on 6/5/2019 affirming that he was a biological son of the 1st Respondent and that he looked after his grandmother for 17 years, in return for which he was given ¼ acre of the estate, in the presence of the other beneficiaries. 6. In its impugned ruling, the trial court ruled: ***“The court has considered the application before it and it is clear that the 2nd respondent Cyrus Wachira Muriithi was given a quarter acre by the grandmother, which the court erroneously considered to be part of the father’s share when the same should be factored in as an independent share which will affect the shares of all the other beneficiaries. In the premises this court invokes the provisions of order 45 and reviews its judgement such that the quarter share of the 2nd respondent be factored in from the estate and as it is clear from the evidence that the sons all were to get ¼ acre of land this court would not want to interfere with that. And as the deceased had given the grandson land it should be given out from that of the daughters as this court has seen that in this part of the country the mothers usually reserve a portion for themselves and their daughters. This court does not know what forms such reasoning, but as it is clear that the deceased had given the grandson as a gift interests. It will be unfair to remove this from his father’s share as he is entitled to the same as an independent child and so the same rank with his father and other beneficiaries of the deceased had not allocated him land, then the court would have been correct to remove his portion from his father, but in the instance as indicated above his share was independent and the court erred by not considering the same. This court therefore invokes the provisions of Rule 73 of probate and administration rule and orders that the certificate of grant issued on 11th October 2018 be rectified as follows to reflect the ¼ acre of Cyrus Wachira Muriithi which the court had considered from the share of Joseph Mugane Gikunju who is entitled equal share as the other brothers. The beneficiaries in the estate know very well that their mother the deceased gave Cyrus Wachira Muriithi land and if they had a problem with that they ought to have addressed it during the lifetime of their mother. No evidence was adduced that she…indicated that the said ¼ acre should be apportions or remove derived from Joseph Mugane Gikunju in premise from the estate is distributed as follows*** ***1) Douglas Njiru Gikunju 0.75acres*** ***2) Benard Bundi Gikunju 0.75 acres*** ***3) Jamleck Ndege Gikunju 0.75 acres*** ***4) Joseph Mugane Gikunju 0.75 acres*** ***5) Douglas Njiru Gikunju to hold 0.75 acres in trust of Janet Kathima Njuki and Caroline Wawira Njuki.”*** **The Appeal** 1. On appeal, the Appellants filed their memorandum of appeal on 1/8/2019 raising 13 grounds as follows: 1. The learned Magistrate erred in law and fact in making adverse orders against the 2nd and 3rd respondents without affording them an opportunity to be heard contrary to Articles 48 and 50 (i) of the Constitution of Kenya. 2. The learned Magistrate erred in law and fact in failing to find that the Notice of Motion dated 22nd February, 2019 was fatally defective. 3. The learned Magistrate erred in law and fact in failing to find that he was functus official and could not make the orders he made. 4. The learned Magistrate erred in law and fact by effectively sitting on appeal in relation of orders he made. 5. The learned Magistrate erred in law and fact in purporting to rectify a grant whereas he was actually completely changing the mode of distribution which does not fall within the ambit of rectification. 6. The learned Magistrate erred in law and fact in failing to find that the issue raised in the Notice of Motion dated 22nd February, 2019 was res judicata in view of earlier proceedings in the same file. 7. The learned Magistrate erred in law and fact by awarding the 2nd respondent a share of the estate of his grandfather while he was not a survivor of the deceased. 8. The learned Magistrate erred in law and fact in awarding the 2nd respondent a distinct share of the estate from his father, the 1st respondent, thereby having the 1st respondent get a bigger portion of the estate than his siblings. 9. The learned Magistrate erred in law and fact by unlawfully discriminating against the appellants based on their gender and reducing their share of the estate whilst not interfering with the share of the sons contrary to Article 27 of the Constitution of Kenya. 10. The learned Magistrate erred in law and fact in granting orders that had not been sought in the Notice of Motion dated 22nd February, 2019. 11. The learned Magistrate erred in law and fact in failing to give reasons as to why he reduced the share of the appellants and did not affect the share of their brothers. 12. The learned Magistrate erred in law and fact in stating that the 2nd respondent had lived on the suit land for 17 years a fact which was untrue and unproven. 13. The learned Magistrate erred in law and fact in making ruling against the weight of evidence. **Duty of the court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See **Selle v Associated Motor Boat Co. & others [1968] E.A. 123**). **Submissions on Appeal** 1. The Appellants urged that the 2nd Respondent’s ¼ share bequeathed to him by his grandmother was supposed to be excised from the share of his father, the 1st Respondent. They faulted the trial court for completely changing the mode of distribution even though the same had not been expressly sought by the 1st Respondent herein in his Application dated 22/2/2019, and cited **Kenya Ports Authority v Autoxpress Limited & 2 Others (2016) eKLR, Bernard Njoroge Kibaki T/A Njowa Njemu Enterprises v Equity Bank Limited & Another [2020] eKLR, Galaxy Paints Co. Ltd v Falcon Guards Ltd [2002] 2 EA 385**. They urged that the reduction of their share interfered with their ownership, occupation and possession, and cited **Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR**. They urged that the 1st Respondent’s allegation that the alleged bequest of ¼ Acre to the 2nd Respondent was to be excised from their share was implausible, and cited **Anwar Ali & Another v Monica Muthoni & Another [2021] eKLR, Pancras T. Swai v Kenya Breweries Limited (2014) eKLR, Turbo Highway Eldoret Limited v Synergy Industrial Credit Limited [2016] eKLR and D.J. Lowe & Company Ltd v Bonquo Indosuez [2006] KECA 360 (KLR)**. 2. The 1st Respondent maintained that he was given ¾ Acres while the 2nd Respondent got ¼ Acres of his grandmother’s share, where he lived for 17 years. 3. The 2nd Respondent urged that he was given 0.25 Acres of the estate by his late grandmother Janet Kathima Gikunju where he has extensively developed. He urged that the Appellants ought to be satisfied with their shares, since they were all married and comfortably living with their husbands. **Analysis and Determination** 1. From the grounds of appeal, the singular issue for determination is whether the trial court misdirected itself in reaching the impugned decision. 2. In her affidavit in support of the summons for confirmation of grant sworn on 29/8/2011, Janet Kathima Gikunju (now deceased) deponed at paragraph 5 thereof that, **“A portion of ¼ ACRE to be excised from JOSEPH MUGANE GIKUNJU’s share of ¾ ACRE and be registered by the names of CYRUS WACHIRA MURIITHI.”** 3. The record shows that on 2/9/2011 during the hearing of the summons for confirmation of grant dated 29/8/2011, the parties expressed their concession and the grant was confirmed as proposed by Janet Kathima Gikunju (now deceased) at paragraph 5 of her affidavit in support. 4. This matter has a checkered history which I will reproduce hereinbelow albeit briefly. Pursuant to the confirmation of the grant on 2/9/2011, the 1st Respondent filed an application dated 11/5/2012 seeking rectification of the grant on the basis that the 2nd Respondent had inadvertently been included as a beneficiary. That application was nonetheless dismissed on 27/9/2012, but the 1st Respondent unperturbedly proceeded to file the application dated 1/11/2017 seeking the nullification of the grant, which the 1st Appellant raised a Preliminary Objection to. In upholding the Preliminary Objection, the trial court, by its ruling dated 18/12/2018 ruled that: ***“It is very clear that the applicant has always been present in these proceedings. Then if he has an issue with the confirmation of ¼ share given to Cyrus Wachira Muriithi who has filed an affidavit stating he is his son, he would have filed an appeal against the decision of the court not an application to revoke a grant confirmed in his presence and with participating and in which he was granted ½ share of Kabare/Kiritine/60.”*** 1. The 1st Appellant moved the court on 20/12/2018 to lift the prohibitory orders against the suit property and dispense with the production of the title deed and the other transmission documents to pave way for the implementation of the grant. That application was met with a lot of contestation from the 1st Respondent, and the trial court, vide its ruling dated 19/1/2019, in rather unexpected turn of events rendered that: *“The court having indicated as above finds that the application has merit and allows it as prayed. However as it is the main contention which the respondent was against all the other beneficiaries is the ¼ acre given by this court to Cyrus Wachira Muriithi. This court invokes the provisions or Rule 73 of the Probate and Administration rules and orders that there be a 7 days stay or execution limited to ¼ acre of Cyrus Wachira Muriithi to allow the Respondent time to make any application he so wishes otherwise the administrator is free to distribute the remainder of the estate per certificate of confirmation.”* 1. Once the trial court heard and ultimately decided the earlier applications dated 11/5/2012 and 1/11/2017, any subsequent application founded on the same facts was barred by the doctrine of Res Judicata. I dare say that the trial court was functus officio, and the 1st Respondent’s recourse on his dissatisfaction with the mode of distribution was to appeal. The jurisdiction of the trial court had been exhausted, and it was no longer open to it to entertain a fresh application seeking, directly or indirectly, to achieve what had already been declined or conclusively settled. 2. This court finds that in entertaining the application dated 22/2/2019 and purportedly issuing orders which, in effect, altered the mode of distribution as previously decreed by the court, the trial court fell into error, and improperly sat on appeal against its earlier decisions. 3. The Court finds that the trial court erred in principle in allowing the application dated 22/2/2019 whose ripple effect was to unprocedurally vary the mode of distribution. **ORDERS** 1. Accordingly, for the reasons set out above, the appeal is merited, and it is hereby allowed in the following terms: 1. The Ruling subject of the appeal is set aside and substituted with an order striking out the application dated 22/2/2019. 2. There shall be no order as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Ms. Muturi for appellant Respondents in person.