In re Estate of Odhiambo (Deceased) (Succession Cause E030 of 2021) [2026] KEHC 13222 (KLR) (1 September 2026) (Judgment)

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **SUCCESSION CAUSE NO. E030 OF 2021** **IN THE MATTER OF THE ESTATE OF MIRIAM CHEPKEMOI ODHIAMBO (DECEASED)** **JUDGMENT** 1. Before this Court is a Notice of Motion dated 16th December, 2024 brought under Section 71 of the Law of Succession Act (Cap 160) and Rule 40 of the Probate and Administration Rules, seeking the confirmation of the Grant of Letters of Administration Intestate issued on 26th February, 2024 in respect of the Estate of the late Miriam Chepkemoi Odhiambo (hereinafter referred to as "the Deceased"). 2. The application is opposed by an Affidavit of Protest dated 13th October 2025, sworn by Esther Waithira Maina, who describes herself as one of the Interested Parties and a bona fide purchaser of the suit property known as Nakuru Municipality Block 29/41 (Rhoda). 3. The dispute principally concerns a property known as Nakuru Municipality Block 29/41(Rhoda) (hereinafter "the suit property"). The Protester contends that the suit property does not form part of the estate of the Deceased and that she acquired an interest therein pursuant to a sale transaction with Oscar C.J. Otieno Odhiambo and Mathew Kiplagat Chesaro. 4. The Court has considered the Notice of Motion, the Affidavit of Protest, the affidavits filed by the parties, the documents annexed thereto and the respective written submissions. **Background** 1. The Deceased, Miriam Chepkemoi Odhiambo, died on 11th October 1995. 2. A Grant of Letters of Administration Intestate was issued on 26th February 2024 to Hellen Adhiambo Odhiambo and Charles John Charles Odhiambo Wanyanga. 3. The Applicant subsequently filed the Notice of Motion dated 16th December 2024 seeking confirmation of the Grant. 4. According to the material placed before the Court, the suit property was valued at Kshs. 30,000,000/= by Maritime Valuers Limited in a valuation dated 17th May 2019. 5. The Protester has exhibited a certificate of official search showing that Oscar C.J. Otieno Odhiambo is the registered proprietor of the suit property. She has further exhibited a title deed issued in Oscar C.J Otieno Odhiambo’s name on 29th May 2013. 6. The Protester further states that she purchased the suit property from Oscar C.J. Otieno Odhiambo and Mathew Kiplagat Chesaro and that she paid a deposit of Kshs. 18,020,000/=. She contends that she conducted due diligence before entering into the transaction and that the official records disclose Oscar as the registered proprietor. 7. That to date, there has been no evidence to show that the suit property was registered to the Deceased. 8. On her part, the Applicant does not dispute that Oscar C.J. Otieno Odhiambo is the person currently reflected in the land register as proprietor. However, she challenges the validity of his title, alleging that the same was fraudulently obtained. 9. Her contention is essentially that, because the Deceased died on 11th October 1995, Oscar could not lawfully have acquired registration in respect of property which, according to the Applicant, belonged to the Deceased without succession proceedings. 10. It is therefore necessary to distinguish between the fact of registration and the validity of that registration. The former is demonstrated by the official search exhibited before the Court. The latter is disputed and raises a question concerning title to land. **ISSUES FOR DETERMINATION** 15. Having considered the pleadings and rival submissions, the issues arising for determination are:- i. *Whether Nakuru Municipality Block 29/41 forms part of the Estate of the Deceased?* *ii. Whether the Protester has demonstrated sufficient interest in the suit property to warrant its exclusion from distribution in these succession proceedings?* *iii. What orders should issue in respect of the Notice of Motion dated 16th December 2024?* **Analysis and Determination** i) ***Whether Nakuru Municipality Block 29/41 forms part of the Estate of the Deceased?*** 16. Section 3 of the Law of Succession Act defines "estate" in relation to a deceased person to mean the free property of which the Deceased was legally competent to dispose during his or her lifetime and in respect of which his or her interest has not terminated by death. 1. Consequently, before an asset can be distributed in succession proceedings, it must first be established that the asset belonged to the Deceased at the time of her death. 2. In the present case, the Deceased died on 11th October, 1995. The material placed before the Court, however, shows that the suit property is presently registered in the name of Oscar C.J.Otieno Odhiambo, *(hereafter referred to as Oscar”)* who was issued with a Title Deed on 29th May 2013. 3. The Applicant contends that the title was fraudulently obtained. That contention cannot, however, be treated as an established fact merely because it has been pleaded. 20. Section 26(1) of the Land Registration Act provides that;- ***“... a certificate of title issued by the Registrar is* prima facie *evidence that the named person is the absolute and indefeasible owner of a property…”*** 1. The same is subject to the statutory exceptions relating, inter alia, to fraud or misrepresentation to which the proprietor is proved to have been a party, or where the title has been acquired illegally, unprocedurally or through a corrupt scheme. 2. The allegation of fraud against Oscar is therefore a matter requiring proof. The burden rests upon the party alleging fraud to establish the allegation by evidence. 3. More importantly, the question before this Court is not merely whether Oscar is the registered proprietor. The Applicant's case invites this Court to determine whether his registration was lawful and whether the title should be impeached. That is a question of title to land. 4. Article 162(2)(b) of the Constitution establishes courts with the status of the High Court to determine disputes relating to the environment and the use and occupation of, and title to, land. 5. A probate court is concerned with the identification, administration and distribution of the estate of a deceased person. Where the ownership of an asset is genuinely contested and resolution of that dispute requires determination of title to land, the question may properly be determined in the forum vested with jurisdiction over title to land. 6. In ***Ishmael Chepyegon & 12 Others v Angela Cheptamos Tonje & 3 Others [2017] eKLR,*** the High Court recognised that although a succession court has jurisdiction to deal with land as an asset of a deceased's estate, where there is a dispute as to ownership or other interest in land, the Environment and Land Court is the appropriate forum to determine the question of title. 7. This approach is consistent with the nature and purpose of confirmation proceedings under Section 71 of the Law of Succession Act. Section 71 empowers the Court to confirm a grant where it is satisfied that the grant was properly made and that the estate will be administered according to law. In an intestate estate, the Court must also be satisfied as to the identities and shares of persons beneficially entitled. 8. Confirmation of a grant is therefore not the appropriate procedural vehicle for determining a substantive dispute as to whether a registered proprietor acquired title fraudulently, illegally or unprocedurally. 9. In the circumstances of this case, there is no sufficient basis upon which this Court can conclusively find, within these confirmation proceedings, that the suit property belonged to the Deceased. 10. Equally, this Court cannot conclusively determine, within the present proceedings, that the Protester has acquired an indefeasible legal title to the suit property. Although the Protester relies upon the registered title in Oscar's name, her own case is founded upon a transaction through which she claims to have acquired an interest from Oscar and Mathew Kiplagat Chesaro. 11. Whether that transaction validly transferred title or an enforceable interest in the land is a matter that may require determination in proceedings properly constituted before the right forum. 12. The Court takes cognisance of the fact that the suit property is presently registered in the name of Oscar C.J. Otieno Odhiambo, who was issued with a title deed on 29th May 2013. 13. It follows that, on the material presently before the Court, the suit property has not been proved to form part of the free property of the Deceased and is therefore not available for distribution in this succession cause. ***ii) Whether the Protester has demonstrated sufficient interest in suit property to warrant its exclusion from the assets available for distribution?*** 34. The Protester contends that she acquired an interest in Nakuru Municipality Block 29/41 pursuant to a sale transaction entered into with Oscar C.J. Otieno Odhiambo and Mathew Kiplagat Chesaro. She states that, prior to entering into the transaction, she conducted due diligence and confirmed from the official records that Oscar C.J. Otieno Odhiambo was the registered proprietor of the suit property. 35. The Protester has exhibited a certificate of official search showing Oscar C.J. Otieno Odhiambo as the registered proprietor and a title deed issued in his name on 29th May 2013. She further states that she paid a deposit of Kshs. 18,020,000/= towards the purchase price. 36. The Protester therefore asserts that she entered into the transaction in good faith and for valuable consideration, having relied upon the title and official records showing Oscar C.J. Otieno Odhiambo as the registered proprietor. 37. The Applicant, on the other hand, challenges the validity of Oscar’s title and contends that the same was fraudulently obtained. The Applicant’s case is that the property belonged to the Deceased and could not have been transferred or registered in Oscar’s name without succession proceedings. 38. The issue before this Court is not, however, whether the Protester should be finally declared the lawful or indefeasible proprietor of the suit property. Rather, the question is whether, in light of the competing claims and the material placed before the Court, the property can properly be treated as an undisputed asset of the estate and distributed in these succession proceedings. 39. The Court finds that it cannot. The official search and title deed placed before the Court show that the registered proprietor of the suit property is Oscar C.J. Otieno Odhiambo and not the Deceased. The Applicant’s assertion that Oscar’s title was fraudulently obtained remains a contested allegation which has not been conclusively established in these proceedings. 40. Further, the Protester has demonstrated that she has a substantial interest in the property arising from the alleged sale transaction and the substantial consideration which she states she paid. Her claim cannot therefore be dismissed summarily or ignored in the determination of the assets available for distribution. 41. Whether the Protester qualifies, in law, as a bona fide purchaser for value without notice, whether Oscar’s title was lawfully acquired, whether the sale agreement was valid and enforceable, and whether the Protester ultimately acquired a proprietary interest in the suit property are questions which require a determination of title and the rights arising from transactions relating to land. 42. Those questions are not properly determinable in the present confirmation proceedings. 43. The Court accordingly finds that the Protester has demonstrated a sufficient interest in the suit property to warrant its exclusion from the assets available for distribution in this succession cause, pending determination of the competing claims by the court of competent jurisdiction. 44. For avoidance of doubt, the Court does not make a finding that the Protester is the lawful or indefeasible owner of Nakuru Municipality Block 29/41. Neither does the Court make a final determination on the validity of Oscar C.J. Otieno Odhiambo’s title. Those questions remain open for determination in appropriate proceedings before the right forum. 45. Consequently, Nakuru Municipality Block 29/41 shall be hived off from the assets available for distribution in this succession cause. The property shall not be included in the mode of distribution when the application for confirmation of grant is heard. ***Alleged non-disclosure*** 1. The Protester further alleges that the Applicant was aware of the sale transaction and deliberately failed to disclose her interest in the suit property when presenting the estate for distribution. 47. Full and frank disclosure of material facts is undoubtedly an important obligation in succession proceedings. Section 76 of the Law of Succession Act permits revocation or annulment of a grant where, among other circumstances, the grant was obtained fraudulently by making a false statement or by concealment from the Court of something material to the case. 1. However, the mere fact that a dispute arises during confirmation proceedings does not, without more, warrant an immediate finding that the grant itself should be revoked. 2. The Court must distinguish between the question whether the grant was properly obtained and the separate question whether a particular asset is available for distribution. 50. On the material presently before the Court, it is not necessary, at this stage, to revoke the entire grant. The immediate issue is that the suit property is contested and its ownership has not been conclusively established as belonging to the estate. 1. The court consequently declines to revoke the entire grant issued on 26th February, 2024 and proceed to give directions for hearing of the application for confirmation of grant in respect of the remaining undisputed assets of the estate. **ORDERS.** 1. The court finds that Nakuru Municipality Block 29/41 does not form part of the Deceased’s Estate. The property shall therefore be excluded from distribution in these succession proceedings. 2. In view of the foregoing the Administrators are granted leave to amend the summons for confirmation of grant dated 16th December, 2024 excluding Nakuru Municipality Block 29/41 from the distribution. 3. The amended summons for confirmation of grant should be filed within 30 days from the date hereof. 4. The costs of the Protest shall be in the cause. 5. Mention on 6th October, 2026 for further orders and directions. It is so ordered. **Dated, signed and delivered at Nakuru this 1st day of September, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Rutoh C/A Njoroge holding brief for Mwangi for Applicant N/A for the Administrators