https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9937

Ooro v Ooro & another (Civil Appeal E001 of 2026) [2026] KEHC 9937 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9937 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E001 of 2026 LM Wachira, J July 3, 2026 IN THE MATTER OF THE ESTATE OF MAGADALENE OLOUCH OORO - DECEASED Between John Okello Ooro Appellant and George Osoro Ooro 1st Respondent Muronga Kadurenge Benard 2nd Respondent (Being an Appeal from the Judgment of Hon. B. Ireri (CM) delivered on 16th December, 2025 in Kisumu Suc. Cause No. 222 of 2024, formerly High Court Suc. Cause No. 213 of 2013) Judgment 1.The appeal arises from the judgment of Honorable Ireri delivered in Kisumu CM Succ. Cause No. E222 of 2024 on 16th December 2025. The Appellant has raised 10 grounds of Appeal vide Memorandum of Appeal dated 9th January 2026. 2.The matter involves 4 siblings and relates to distribution of land parcel number Kisumu/Konya/2850 measuring approximately 0.9 hectares. The land was registered in the name of the 1st Respondent and their late mother Magdalene Oluoch Ooro each party owning half share as indicated on the green card. 3.Previously the land parcel number Kisumu/Konya/2850 had gone through succession where the Appellant herein was the administrator and beneficiary, but the grant was revoked because the Appellant had not involved the other family members. The Appellant had sold 0.4 ha to the 2nd Respondent herein who was named as an Interested Party in the proceedings before the trial court. 4.After Revocation, the Appellant herein and the 1st Respondent were appointed co administrators. The Cause was heard through viva voce evidence and the trial Magistrate in his judgment directed that only half of Kisumu/Konya/2850 was available for distribution because the parcel was registered in the names of the Deceased and the 1st Respondents as tenants in common. The court then proceeded to distribute that remaining half share to the 1st Respondent and two sisters who could surrender their share to the 1st Respondent if they so wished, stating that the Appellant had also benefited from a parcel of land at Miranga which had been gifted to him by the deceased. The trial court also held that the Appellant was to inherit the land at Miranga where he has established a him. 5.Dissatisfied with this decision by the trail court the Appellant has preferred the present Appeal and listed the grounds which can be condensed as below: -a.The Learned Magistrate erred in law and fact by making a finding that the Appellant had been given land by the deceased when there was no such evidence.b.The Learned Magistrate erred in law and fact by making a finding that the appellant was not entitled to get a portion of land parcel number Kisumu/Konya/2850 belonging to the deceased.c.The learned Magistrate erred in law and fact by making a decision allowing the daughters of the deceased from getting inheritance from land parcel number Kisumu/Konya/2850 when they had already renounced their right to the estate.d.That the learned trial Magistrate erred in law and fact by failing to find that the portion sold and transferred to the 2nd Respondent was done after the completion of succession that had not been set aside. 6.I will now analyze the grounds as set out above.The Learned Magistrate erred in law and fact by making a finding that the Appellant had been given land by the deceased when there was no such evidence. 7.The finding of the trial Magistrate in his judgement was that the 1stadministrator (appellant herein) had already benefited from family land in Miranga where he had established his home. I have had the opportunity to look at the evidence tendered in court and the land in Miranga was not subject of the succession proceedings herein. It was not listed as one of the properties available for distribution and there was no evidence whatsoever that it was owned by the deceased or transmitted to the Appellant at any point in time. 8.It was alleged that it was ancestral land, but then again, there was no evidence to show who owns the land. It is the duty of the parties to avail all evidence and to prove the allegations to enable the court to make an informed decision. The 1st Respondent in his affidavit in page 157 of the record of appeal stated that the Appellant was given land parcel number Kisumu/Konya/1791 which was at Miranga. There is no evidence of this gift and it was upon the 1st Respondent to prove this allegation as required by Section 107 of the Evidence Act. 9.The Section provides that “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist” Although the 1st Respondent and the two witnesses told the court that the Appellant was given land at Miranga by their father, they were not specific on the parcel number and did not bring any evidence of ownership, either by a search, a title or copy of the green card. 10.My finding therefore is that there was no proof that there was any land gifted or bequeathed to the Appellant and even if they had, the court had no power to distribute a property that was not owned by the deceased at the time of her death and not part of the proceedings before court.The Learned Magistrate erred in law and fact by making a finding that the appellant was not entitled to get a portion of land parcel number Kisumu/Konya/2850 belonging to the deceased. 11.It is not disputed that this particular household of Magadelene Ooro has four surviving children. The evidence on record indicates that all witnesses including the 1st Respondent were in agreement that the Appellant should get his share from the estate. On the affidavit sworn by the 1st Respondent on 13th May 2024 paragraph 12, the 1st Respondent swears that he was praying for half of the portion and the other half can be distributed between him and his brother. 12.Further Section 38 of the Succession Act provides that where deceased left children but no spouse then the net residue of the estate should be divided equally amongst the children. The Section reads as follows: - “Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.” 13.This position has been reiterated by Hon. Justice Nyamweya in Machakos Succession Cause No. 122 of 2010 in the matter of the estate of the late Gedion Manthi Nzioka (deceased) George Nziuko John Mukulya Manthi vs- Monicah Mwenga Aaron Muthiani where the court held as follows : - “The Court in this regard is of the view that Syokimau Farm should be equally distributed among all the beneficiaries, in accordance with the provisions of Section 38 of the Law of Succession Act that requires that a deceased’s estate shall be divided equally amongst the surviving children”. The same position was echoed by Hon. Justice Nyakundi in the case of In re Estate of Kiplagat Kibitok (Deceased) [2024] KEHC 4900 (KLR) when he cited the decision in Re Estate of John Musambayi Katumanga – deceased [2014] eKLR held as follows:-“The spirit of part V, especially sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children”. 14.My finding is that the trial Magistrate erred in finding that the Appellant was not entitled to benefit from the estate of the deceased who was his mother, and therefore disinherited him.The learned Magistrate erred in law and fact by making a decision allowing the daughters of the deceased from getting inheritance from land parcel number Kisumu/Konya/2850 when they had already renounced their right to the estate. 15.The law on renunciation of inheritance rights is that renunciation has to be unequivocal and final. Parties have to adopt their affidavits and clarify any issues and neither the court nor any party can force a renunciation down the throat of a beneficiary. 16.In the present case, the two girls Serfine Ooro and Valleria Ooro had affidavits sworn on 27/5/2021 stating that they had renounced their inheritance rights in favor of the 1st Respondent. They testified in court and what is recorded in the testimony recorded on 28th November 2024 when Seravin testified and 4th February, 2025 when Valeria testified is that there were conditions to the renunciation. That if the Appellant was getting a share, the girls would also pursue their share, but if the entire share was going to the 1st Respondent then the girls were willing to have the 1st Respondent benefit from their share. 17.This kind of evidence together with the affidavits filed after the revocation of the initial grant cannot be called unequivocal renunciation. For a renunciation of inheritance to be valid and binding, the same must be unequivocal, voluntary, informed and final. The alleged denunciation herein is very shaky and appears to be under conditions. 18.It is always the duty of a court to ascertain all beneficiaries and determine their respective shares before distribution of the estate. The proceedings remain open for beneficiaries to assert their interests until a confirmed grant is issued and the courts apply the law during confirmations and that is why each party is availed an opportunity to tender evidence. The court would not give orders based on conditions that are not legally binding. See In the Estate of Mwaura Mutungi alias Mwaura Gichimu (Deceased) [2019] eKLR 19.My finding is that the trial court did not err in disregarding the initial renunciation before the second hearing, more so guided by the testimony of the two girls and the conditions mentioned in their testimony.That the learned trial magistrate erred in law and fact by failing to find that the portion sold and transferred to the 2nd respondent was done after the completion of succession that had not been set aside. 20.The 2nd Respondent did not file an appeal against the Judgment of the trial court and has not filed any submissions in the Appeal. However, the Appellant herein, who allegedly sold the land has raised this ground and I will therefore make a decision on the same. 21.The title that was passed by the Appellant herein to the 2nd Respondent was a title obtained during the first Succession where the grant was revoked by the High Court. The High Court found that the previous grant obtained by the Appellant was obtained without the knowledge of all the beneficiaries and in contravention of the Succession Act. 22.This being the case, the Appellant had no good title to pass to the 2nd Respondent and cannot anchor his claim on being an innocent purchaser as the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) held that there is no such thing as innocent purchaser when the seller acquired his title unlawfully. 23.Similarly, this is a purported transaction that completely ignored all the beneficiaries. This is because 1st Respondent already had the half share that he had bought and did not share in his mother’s half share and the two girls were also excluded. In this I will echo the words of Nagillah, J. in Monica Adhiambo v Maurice Odero Koko [2016] eKLR who found as follows:-“…the petitioner stole a march over the otherbeneficiaries who were also to benefit on equal status on the property of the deceased and it would be unfair to validate the illegal actions of the petitioner by invoking Section 93 of the Law of Succession Act. The reality of the situation is that provisions of Section 93 do not validate unlawful acts and what was intended by Section 93 was where a grant is properly and lawful issued then, Section 93 can come to the rescue of such a purchaser. In my humble view the underlying objective of the law of Succession Act is to ensure that beneficiaries of deceased persons inherit the property”. 24.My finding is that it would be completely unfair to validate the illegal acts of the Appellant herein to disinherit the beneficiaries of the estate of the deceased. 25.In any event, from the lower court record, the grant was revoked in 2019 and the transfer to the 2nd Respondent was done in 2021. By then, the Appellant had no powers as an administrator of the estate of the deceased and could not transact in the estate. What he did, can only be termed as intermeddling in the Estate of the deceased. 26.My finding is that the sale and transfer to the 2nd Respondent was irregular and the trial court did not err in ordering a cancellation of the same. 27.The Upshot of the matter is that the Appeal herein partially succeeds in terms of the following orders: -a.The half share of parcel of land known as Kisumu/Konya/2850 will be distributed equally among the Appellant, 1st Respondent and the two daughters of the deceased Servine Oroo and Valeria Akinyi Oroo. Servine Oroo and Valeria Akinyi Oroo are at liberty to surrender their portions to whoever they choose. For avoidance of doubt, the other half share remains the property of the 1st Respondent.b.An order of cancellation of the titles known as known as Kisumu/Konya/9156, Kisumu/Konya/9064 and Kisumu/Konya/9065 is issued.c.An order is issued to amalgamate the three parcels of land that the titles above have been cancelled to a single parcel and restore it to the original number being Kisumu/Konya/2850, to be registered jointly in the name of the deceased and the 1st Respondent.d.That an order is issued to partition the parcel so that the 1st Respondent retains his half share and the other half share to be transmitted to the four (4) beneficiaries as listed in order (a) above.e.That this being a family succession dispute I will direct that each party will bear its costs. 28.Orders Accordingly. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 3RD DAY OF JULY, 2026..............................L. M. WACHIRAJUDGEIn the Presence of:Leadys –Court assistantN/A for the Appellant.N/A for the Respondent.