https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1076

Ochido v Omedo (Civil Appeal 55 of 2020) [2026] KECA 1076 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1076 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 55 of 2020 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 29, 2026 Between Jane Otieno Ochido Appellant and Patrick Lumumba Omedo Respondent (Being an appeal from the judgment and decree of the High Court of Kenya at Kisumu (Cherere, J) dated 25th July, 2015 in Kisumu Succession cause No. 64 of 2015) Judgment 1.The appeal before us arises from a succession dispute concerning the estate of Owino Rachier, “the deceased”, who died intestate on 2nd February 1975. His estate comprised all that piece or parcel of land known as KISUMU/BAR/1072, “the suit property”. On 28th June 2016, a grant of letters of administration intestate were issued to Janes Otieno Ochido, “the appellant”, who described himself as the deceased’s nephew. Subsequently, on 18th April 2017, a certificate of confirmation of a grant of letters of administration intestate were issued in his favour and one, Ambrose Onyango Ochieng, “Ambrose”. 2.On 22nd October 2018, Patrick Lumumba Omedo, “the respondent”, moved the trial Court seeking revocation of both the grant and the certificate of confirmation of grant aforesaid. His principal contention was that the appellant had concealed a material fact; that in KISUMU CMCC No. 27 of 2011, the court had determined that his father, Jakim Omedo Ayieko alias “Jakim”, had purchased the suit property from the deceased in 1974. The respondent further asserted that his family had been in possession and use of the suit property continuously since then. 3.The appellant, while acknowledging his blood relationship to the deceased, denied knowledge of the sale and disputed the respondent’s claim of possession and occupation of the suit property. The trial Court distilled two issues for determination; first, whether the grant of letters of administration intestate and certificate of confirmation thereof should be revoked; and second, who was entitled to administer the deceased’s estate thereafter. The trial court then invoked Section 76 of the Law of Succession Act, which empowers revocation of a grant obtained fraudulently or through concealment of material facts. 4.The court reasoned that Sections 3 and 34 of the Law of Succession Act, defines the deceased’s “free property” as property he was legally competent to dispose of in his lifetime. Since the deceased had already sold the suit property to Jakim during his lifetime, the suit property was no longer free property available for distribution among his beneficiaries. It also noted and held that it was Ambrose who had sued the respondent in Kisumu CMCC No 27 of 2011 and that the court determined factually that the respondent’s father had indeed bought the suit property. That it was common ground that Ambrose did not appeal that decision. The appellant and Ambrose, though relatives of the deceased, knowingly concealed this fact when applying for the grant as well as its confirmation thereof. 5.Ultimately, the trial Court found that while the grant of letters of administration intestate had been lawfully issued, the certificate of confirmation of grant intestate was obtained fraudulently through concealment of material facts. It accordingly revoked the certificate of confirmation of grant intestate issued to the appellant and Ambrose; cancelled certificate of title in respect of the suit property in their names; and directed the Land Registrar to revert the ownership of the suit property to the deceased’s estate. Contemporaneously, it issued a fresh certificate of confirmation of grant in favour of the respondent, in his capacity as administrator of Jakim’s estate, and directed that the suit property form part of Jakim’s estate in Kisumu Succession Cause No. 1283 of 2015 and awarded costs against the appellant. In reaching its decision, the court relied on Musa Nyaribari Gekone v Peter Miyienda [2015] eKLR, Kennedy Opiche Olela v William Ogida Ochuodho [2014] eKLR, and Ireri Nyaga v Karani Ngari [2010] eKLR. 6.Dissatisfied, the appellant lodged the instant appeal contending that the trial court erred in law and fact in holding that: Jakim had bought the suit property from the deceased; the suit property did not form part of the estate of the deceased; he had concealed material facts at the time of applying for the confirmation of grant; Ambrose, who was neither the appellant nor a party to the proceedings, was the administrator of the deceased’s estate and had sued the respondent in Kisumu CMCC No. 27 of 2011, which allegedly determined ownership of the suit property; Section 7 of the Land Act was supposed to be litigated in Kisumu CMCC No. 27 of 2011, a case in which he was not a party, Kisumu CMCC No. 27 of 2011 determined ownership of the suit property; by virtue of being related to Ambrose, and was therefore aware of the outcome of the said Kisumu CMCC No. 27 of 2011 and lastly, he faulted the trial court for issuing a grant in favour of the respondent as administrator of the estate of Jakim, when the same was already the subject matter in a different succession cause. 7.When the appeal came up for hearing on our virtual platform, Mr.Bagada and Mr. C. M. Ouma, learned counsel appeared for the appellant and respondent respectively. Both parties opted to rely on their respective written submissions that they had filed and exchanged, albeit with limited oral highlights. 8.Mr. Bagada, submitted that the appellant and Ambrose were the duly appointed administrators of the estate of the deceased, having petitioned for the grant of letters of administration intestate. He explained that the respondent had initially filed an objection to the making of the grant but later withdrew it, thereby clearing the way for the issuance of the grant in favour of the appellant and Ambrose. Upon expiry of the statutory period, they successfully applied for the confirmation of the grant. However, the respondent later filed an application for revocation of grant alleging concealment of material facts, specifically that the ownership of the suit property had been adjudicated upon in Kisumu CMCC No. 27 of 2011, where the court found that it belonged to Jakim, and not the deceased uncle of the appellant. 9.Mr. Bagada submitted that the trial court erred in holding that Jakim had purchased the suit property without evidentiary proof. He pointed out that the respondent himself admitted that he had not annexed any sale agreement between Jakim and the deceased. Counsel relied on the judgment in Kisumu CMCC No. 27 of 2011 in which Ambrose was the plaintiff, yet in that suit the learned magistrate expressly held that Ambrose lacked locus standi to institute the suit, as he was not a duly appointed administrator of the deceased’s estate and that the suit was not therefore properly before the court. Further that the estate of the deceased was never represented in that suit, and the agreements relied upon were unsigned and unperfected. Counsel argued that the trial court erred therefore in binding the estate of the deceased to a judgment in which it was never a party. 10.On concealment of material facts, Mr. Bagada contended that there was none. He explained that the respondent had filed an objection to the grant but withdrew it. Counsel submitted that the respondent was fully aware of the succession proceedings and chose to withdraw his objection, hence there was no concealment that could be alleged. 11.Counsel further faulted the trial court for holding that Kisumu CMCC No. 27 of 2011 determined ownership of the suit property. He emphasized that the trial court dismissed the suit for want of jurisdiction and locus standi, and no decree was ever issued conferring the suit property to the respondent. Counsel relied on Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] KECA 250 (KLR), where the Court held that locus standi in succession matters is only conferred upon obtaining a grant of letters of administration intestate, and that any action commenced without such grant is incompetent. Similarly, in Otieno v Ougo & Another (No. 2) [1987] KECA 79 (KLR), the Court held that an administrator cannot bring an action before obtaining letters a grant of letters of administration intestate. Thus, the respondent’s reliance on Kisumu CMCC No. 27 of 2011 was misplaced in the circumstances. 12.Counsel also challenged the finding that issues involving the application of Section 7 of the Land Act should have been litigated in CMCC No. 27 of 2011, yet the estate was not a party to the said suit. Moreover, the transaction involved agricultural land, which required Land Control Board consent under the Land Control Act; which was not obtained. Counsel cited Re Estate of John Gakunga Njoroge [2015] eKLR, where the court held that transactions involving agricultural land must comply with the provisions of Land Control Act. He further relied on David Sironga Ole Tukai v Francis Arap Muge & 2 Others [2014] KECA 155 (KLR), where this Court held that occupation of agricultural land pursuant to a transaction lacking Land Control Board consent was illegal and cannot constitute an overriding interest. Thus, the alleged purchase by Jakim was void for want of consent. Counsel therefore faulted the trial court for ordering that the suit property form part of Jakim’s estate in Kisumu Succession Cause No. 1283 of 2015, despite the absence of any valid sale agreement or transfer documents. 13.Counsel submitted that the trial court erred in holding that the respondent need not file another suit against the administrator of the deceased’s estate, yet the respondent had already filed Kisumu ELC No.158 of 2018, which was pending. The trial Court’s reliance on Kisumu CMCC No. 27 of 2011 to bar further litigation was therefore erroneous. 14.Ultimately counsel urged this Court to allow the appeal, set aside the judgment of the trial Court and reinstate the revoked confirmed grant in favour of the appellant and Ambrose. 15.Mr. C. M. Ouma in opposition to the appeal, submitted that the judgment and decree of the trial court was firmly grounded in law, fact, and fairness and that the appeal was therefore devoid of merit, premised on a misapprehension and misapplication of the law, and should be dismissed forthwith with costs. Counsel argued that the suit property’s ownership had been the subject of litigation in Kisumu CMCC No. 27 of 2011, filed by Ambrose in his capacity as administrator of the estate of the deceased against the respondent. In that suit, the trial court dismissed the claim but made a factual finding that the suit property had been sold by the deceased to Jakim and that Jakim’s family had possession thereof since 1974. Counsel emphasized that this determination was never appealed, reviewed, or set aside and therefore was binding on the parties. 16.Counsel further submitted that the appellant, being a cousin to Ambrose and listed as a witness in the suit, could not feign ignorance of the findings in Kisumu CMCC No. 27 of 2011. Instead, together with Ambrose, they proceeded to institute succession proceedings leading to this appeal, indicating that the suit property was the sole asset of the estate of the deceased, despite knowing that its ownership had already been determined in Kisumu CMCC No. 27 of 2011. Counsel argued that this was a deliberate act of mischief and concealment of material facts by the appellant and Ambrose in order to defeat and or circumvent the said judgment and decree. 17.Counsel submitted that the question of ownership of the suit property having already been conclusively determined in CMCC No. 27 of 2011, the trial court was right to rely on that finding. He also submitted that the germane issue in CMCC No. 27 of 2011 was ownership of the suit property, which was conclusively determined, and the trial Court was right not to reopen the issue, as doing so would have amounted to sitting on appeal on the decision without an actual appeal having been filed. Counsel maintained that the trial court properly exercised its inherent and residual powers to render a conclusive decision that prevented further mischief. 18.Counsel further submitted that instituting another suit on the same subject matter would have been unlawful, and the trial court rightly observed that duplicity of suits was impermissible. He argued that the trial court fully considered the appellant’s submissions and correctly unraveled the scheme between the appellant and Ambrose. He contended that since Kisumu CMCC No. 27 of 2011 determined that the suit property belonged to Jakim, the trial court held, and properly so, that it should form part of Jakim’s estate in Succession Cause No. 1283 of 2015. In conclusion, counsel submitted that the trial court’s judgment was fair, just, and conclusive, having properly applied the law and evidence to prevent abuse of court process. He urged this Court to dismiss the appeal with costs. 19.It is trite law that the duty of this Court in a first appeal is to reconsider the evidence, evaluate it afresh, and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. This requirement was laid down in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123. 20.Similarly, in Peters v Sunday Post Ltd [1958] EA 424, the Court emphasized that while an appellate court is not bound to accept the trial court’s findings of fact, it must be cautious not to interfere unless it is clear that the trial court failed to properly evaluate the evidence or reached a conclusion unsupported by the evidence. 21.Guided by these injunctions we now turn to consider the issues that arise for our determination in this appeal. In our view, there are three such issues; whether the trial court erred in law and fact in holding that the suit property had been sold by the deceased to Jakim; finding that the appellant had concealed material facts when applying for the grant and its confirmation thereof; and lastly, whether the trial court erred in ordering that the suit property should form part of Jakim’s estate in Succession Cause No. 1283 of 2015. 22.On the first issue, we note that the trial court relied on the findings in Kisumu CMCC No. 27 of 2011, in which Ambrose's claim was dismissed but nonetheless the court found as a fact that the suit property had been sold to Jakim by the deceased in 1974 and that his family had been in occupation since then. The appellant’s contention is that there was no evidentiary proof of sale, as no signed agreement was produced nor the relevant land control consent obtained. It is clear from the record that while the learned magistrate in CMCC No. 27 of 2011 held that Ambrose lacked locus standi to institute the suit, she nevertheless made factual findings of fact that the deceased had sold the suit property to Jakim and the latter immediately took possession and occupation thereof. The question before us is whether the trial Court erred in relying on those factual findings. This Court has consistently recognized that factual findings, even in suits dismissed for whatever reason(s) may still be relevant if not challenged. In Mbuthia v Jimba Credit Finance Corporation & Another [1988] KLR 1, the Court held that possession and occupation are weighty factors in determining proprietary claims, and that courts must consider the conduct of the parties and the surrounding circumstances. 23.The evidence before the trial Court showed that Jakim’s family had been in continuous possession and occupation of the suit property since its purchase in 1974. This was corroborated by the evidence tendered in the trial court and by the learned magistrate’s findings in CMCC No. 27 of 2011. The appellant did not produce contrary evidence, nor did he challenge the learned magistrate’s factual findings aforesaid on appeal, or have it reviewed and set aside and therefore the finding is binding. The issues regarding want of signed sale agreement(s) or consent of the relevant consent of the Land control board are all matters that could only have been challenged or raised in those proceedings or even on appeal from that decision. The appellant could not therefore properly raise them in the trial court or even in this appeal. Indeed, for now, they are irrelevant. In these circumstances, the trial court was entitled to rely on those factual findings in the absence of any evidence to the contrary. We are therefore satisfied that the trial Court did not err in law or fact in concluding that the deceased had sold the suit property to Jakim, and that it was therefore not part of the deceased’s free estate available for distribution. 24.On the second issue, the record shows that the respondent had initially filed objection proceedings but later withdrew them, and subsequently pursued his claim in Kisumu ELC No. 158 of 2018. The appellant argues that this sequence of events demonstrates that there was no concealment of material facts to warrant the revocation of a confirmed grant. The trial Court, however, found otherwise, holding that both the appellant and Ambrose knowingly failed to disclose the existence and outcome of Kisumu CMCC No. 27 of 2011, where the learned magistrate had made factual findings that the suit property had been sold to Jakim and that his family had been in possession, occupation and use thereof for years since 1974. The applicable law is Section 76(b) of the Law of Succession Act, which provides that a grant may be revoked if it was obtained fraudulently or by concealment of material facts. The Court of Appeal in Matheka v Matheka [2005] eKLR underscored this principle, holding that failure to disclose material facts touching on ownership of the property of the deceased amounts to concealment of facts warranting the revocation of a grant. The rationale is that succession proceedings must be conducted above board with full disclosure of all facts affecting the estate, so that the court can properly determine what constitutes the deceased’s free property available for distribution. 25.In the present case, the appellant was listed as a witness in Kisumu CMCC No. 27 of 2011 and admitted in cross-examination that he was informed of the case by Ambrose. Despite this knowledge, he proceeded to petition for the grant and its confirmation thereof without disclosing that the issue of ownership of the suit property had already been litigated upon and determined in Kisumu CMCC No. 27 of 2011, wherein it was held that the suit property no longer belonged to the deceased. It was therefore not part of the deceased’s estate available for distribution as he had sold it. This omission by the appellant was not inadvertent but deliberate, given that the suit property was the only asset of the estate and the outcome of the earlier suit directly affected its status. We are therefore in agreement with the trial Court that concealment of material facts was proved. The appellant’s failure to disclose the existence and findings in CMCC No. 27 of 2011 amounted to fraudulent concealment of facts within the meaning of Section 76(b) of the Law of Succession Act. The revocation of the grant on that basis was thus justified and properly grounded in law and fact. 26.On the third issue, the trial court is faulted for ordering that the suit property form part of Jakim’s estate in Kisumu Succession Cause No. 1283 of 2015, despite the absence of any valid sale agreement or transfer documents. And that in so doing, the trial court circumvented express provisions of the Land Control Act and deprived the estate of the deceased of its free property. 27.Here again, we see the appellant hinging his argument on the question of sale agreement, documents of transfer and the fact that the transaction was void for want of Land Control Board consent. We have already addressed these issues elsewhere in this judgment. We need not therefore revisit them. 28.Having carefully reviewed record, evidence and submissions, we find no merit in this appeal. The trial court correctly applied Section 76 of the Law of Succession Act, properly relied on the factual findings in CMCC No. 27 of 2011, and rightly concluded that the suit property formed part of Jakim’s estate. Accordingly, the appeal is dismissed with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026.ASIKE-MAKHANDIA...................................JUDGE OF APPEALH. A. OMONDI...................................JUDGE OF APPEALL. KIMARU...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR