https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12972

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **SUCCESSION CAUSE NO. 99 OF 1992** **IN THE MATTER OF THE ESTATE OF THE LATE ISAAC KEGA MUTHUA (DECEASED)** **MUTHUA KEGA ………………….…. APPLICANT/ADMINISTRATOR** **VERSUS** **JOSEPH NGARI GITHINJI …………………......…….…… RESPODENT** **RULING** 1. There will never be an end to greed, subterfuge and skullduggery. This ruling is in respect of the summons dated 29.08.2024. The application was allowed partly by appointing the administrator in lieu of the deceased administrator, Alice Wangui Kega. There was a response filed by Joseph Ngari Githinji. His thesis was simple, that vide HCCC No. 46 of 1981 between the deceased herein and Anthony Mwangi Gikandi, this court decreed land parcel number Karatina Town/Block 1/286 to the late Anthony Mwangi Gikandi (deceased). 2. Given the nature of the response filed, I directed that the issue concerning Land Parcel No. Karatina Town/Block 1/286 be heard and determined first. The remainder of the claim shall be dealt with immediately after the delivery of this ruling. I further directed that all beneficiaries be present during the proceeding today. 3. The applicant did not file any documents or submissions after the court gave directions on 11.05.2026. The respondent on the other hand filed submissions to the claim. Background to the Application 1. This cause was filed in 1992, a period of 34 years ago. In the application the following parcels were declared as the properties of the estate vide an affidavit dated 11.11.1993 in support of the application for confirmation: 1. Mahiga/Kamoko/178 2. Mahiga/Munyange/319 3. Mahiga/Ugachiku/510 4. Mahiga/Munyange/215 2. Nothing significant transpired in the matter until 2.11.2022, when the firm of Ndirangu Kamau requested for the file to file an application to rectify the grant. No further action was undertaken until the summons dated 29.08.2024 were filed. 3. The properties left behind were now increased by one, through addition of land parcel number No. Karatina Town/Block 1/286. It was also indicated that Vincent Mwangi Kega died on 27.07.2021 and was survived by his wife Jemimah Wasai Chome. They stated that all beneficiaries have acceded except King’ori Isaac Kega. 4. In regard to land parcel No. Karatina Town/Block 1/286, it was noted that the said property should be sold and proceeds shared equally among the beneficiaries. 5. Unknown to the applicant, the respondent was vigilant. He filed a replying affidavit setting out the history of land parcel number Karatina town/block 1/286, that the deceased sold the said parcel to the late Anthony Mwangi Gikandi (Deceased). 6. It was disclosed that there was a court case, being HCCC No. 46 of 1981. A consent was recorded to transfer the said parcel to late Anthony Mwangi Gikandi (deceased). They annexed the consent order recorded before E. O’Kubasu J, as then he was, on 14.07.1982. 7. Further, there was an attempt to file for succession vide Succession Cause Number 28 of 2001. The grant obtained therein was revoked for concealment of material facts. The grant had been issued to Vincent Mwangi Kega, Muthui Kega, Joseph Kingori Kega, Samuel Nuthu Kega and Peter Ndungu Kega on 10.07.2002. 8. The court directed that another member takes letters to distribute the estate including land parcel number Karatina town/block 1/286. The application for revocation or annulment of grant be filed in the normal manner. It is noted that the transfer by the town planning committee of the Municipal Council of Karatina on 21.09.1977. Analysis 1. The only question before me is whether, land parcel number Karatina town/block 1/286 forms part of the estate of the deceased and that it was inadvertently left out. 2. As a preliminary matter, the applicant did not file submissions. They do not affect the decision of the court. The court is deemed to know the law. In any case submissions are persuasive and nothing can turn on failure to file them. Mwera J, as he then was, posited as follows when postulating on what is the role of submissions. He stated that they are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim. In the case of **Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi** Nairobi HCCC No. 36 of 1993, the court stated: “Indeed, and strictly speaking, submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So submissions are not necessarily the case.” 1. Submissions are not, **strictly speaking, part of the case, the absence of which may do no prejudice to a party. Their presence or absence does not in any way prejudice a case. As held in Ngang’a & Another** **vs**. **Owiti & Another** **[2008] 1KLR (EP) 749**, the Court stated that: **“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”** 1. The Court of Appeal was more succinct in that **Submissions cannot take the place of evidence** when they addressed the question in the case of **Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR**: **“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “**marketing language**”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”** 1. The respondent submitted that the property was sold to the late Anthony Mwangi Gikandi (deceased). The respondent is the administrator of his estate. They also indicated a number of names the court needed to transfer the said parcel to. This was prevaricating. It is either the land belonged to the estate or it did not. If it did, then the court will deal with the same under the law of intestacy. If it is not, it will be sent to the estate of the late Anthony Mwangi Gikandi (deceased) for succession in respect of his heirs. 2. What is not in doubt is that the parties were aware of the fate of land parcel number Karatina town/block 1/286. It had been decreed away. The parties informed the court that the estate belonged to the late Anthony Mwangi Gikandi (deceased). As way back as 2001, the parties were aware of the claim by the respondent or the estate of the late Anthony Mwangi Gikandi (deceased). It cannot be said that the same was inadvertently left out. 3. The applicant needed to be honest about the land. It was transferred in the municipal records, long before most of the parties now in court were born. For a period of half a century the applicants have not been in possession of the said parcel. Surely there has to be an end to some of these shenanigans. 4. The supporting affidavit, in so far as it relates to land parcel number Karatina town/block 1/286, reminds me of the lamentations by Odunga J, as he then was, in [*Kioko Peter v Kisakwa Ndolo Kingóku* [2019] KEHC 11387 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/11387/eng%402019-06-10): ….Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms: “I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.” 5. In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that “In my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…” 1. The said land parcel number Karatina town/block 1/286 having been decreed way back in 1981, does not form part of the free estate of the deceased. If there are other claims, they should be determined as per the dictates of article 162(2)(b) of the constitution. I agree with the applicant that this is where rule 41(3) of the probate and administration rules comes in. It provides as follows: Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to [section 71(2)](https://new.kenyalaw.org/akn/ke/act/ln/1980/104/eng%402022-12-31#section%2071) of the Act, proceed to confirm the grant. 1. Having found that there was a valid process that transferred the land, the only remaining aspect is for the court to give directions on the way forward. Though transferred, possession taken, the title itself has not been transferred. Therefore, the administrator shall transfer the said land parcel number Karatina Town/Block 1/286 to the estate of the late Anthony Mwangi Gikandi (deceased) *aka* late Anthonio Mwangi Gikandi (Deceased). If the administrator does not execute the transfer within 7 days from today, the Deputy Registrar of this court to do so. 2. The rest of the application, that is prayers 2, 3(2) and (3), 4 and 5 be dealt with after this Ruling. 3. This leaves the issue of costs, which are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: **It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.** 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others** [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: 18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation. 22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 1. The matter has been in our courts since 1981. Parties have litigated and re-litigated. The finding above will assuage the respondent and there is no need to add more to the interaction between the parties. As way back as 1982, the deceased was labouring under the pain of payment of costs. Therefore, the court does not wish to pass the order for costs to the next generation. Each party will bear their own costs. Determination 1. In the upshot, I make the following orders: 2. Land parcel number Karatina Town/Block 1/286 is not a free property of the deceased herein. It cannot be included as part of property to be distributed to the estate of the deceased herein. 3. Pursuant to rule 41(3) of the Probate and Administration Rules, it is not a free property of the deceased, it belongs to the estate of the late Anthony Mwangi Gikandi (deceased) *aka* late Anthonio Mwangi Gikandi (Deceased), pursuant to the consent decree in HCCC No. 46 of 1981. 4. Therefore, the administrator shall transfer the said land parcel number Karatina Town/Block 1/286 to the estate of the late Anthony Mwangi Gikandi (deceased) *aka* late Anthonio Mwangi Gikandi (Deceased). 5. If the administrator does not execute the transfer within 7 days from today, the Deputy Registrar of this court to do so. 6. Each party shall bear its own costs. 7. The matter to proceed for hearing of the remainder of the application, the summons dated 29.08.2024, that is prayers 2, 3(2) and (3), 4 and 5, after this Ruling. **DELIVERED, DATED** and **SIGNED** at **NYERI** this **23rd** day of **July,** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Mr. Kanyi Ndurumo for the Administrator Mr. Wahome Gikonyo for the Respondent Court Assistant – Timothy