https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10063

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E 102 OF 2025** **NJERI KARANJA 1ST APPELLANT** **MARGARET NYAMBURA MBUGUA 2ND APPELLANT** **VS** **MARY NYAMBURA WAINAINA RESPONDENT** *(****Being an appeal from the ruling of (Honourable Ng’ang’a Nellieanne on 17th June 2025, in Kiambu Chief Magistrate Succession Cause no. 308 of 2015- In the matter of the estate of NYOIKE MAHORU-Deceased.)*** **RULING** 1. Before this court is an appeal against a ruling delivered on 17th June 2025. The appellant filed a memorandum of appeal dated 3rd March 2025 seeking the following orders: ***i) That the Appeal herein be allowed and the ruling in the lower court be set aside and thereby substituted with an order reinstating the Certificate of confirmation.*** ***ii) That the costs of this appeal be awarded to the appellants***. 2. The memorandum is anchored on the following grounds:- ***i) That the learned magistrate erred in-law and facts in finding that a certificate of confirmation of Grant could be revoked by revoking the certificate of Confirmation confirmed on 22nd November 2017.*** ***ii) That the learned magistrate erred in law and facts in disregarding the ruling of Hon. S.Atambo S.P.M (as she then was) dated 5th July 2017 which provided for a right of appeal in 28 days.*** ***iii) That the learned magistrate erred in law and facts by assuming jurisdiction thereby sitting on the court’s appeal.*** ***iv) That the Honourable Magistrate Ruling was without basis and or reasons, against the weight of the evidence on record and thereby bad in law.*** ***v) That the earned magistrate erred in facts and law in disregarding the applicant’s submissions and the authorities cited in support of their application.*** **Back ground.** 3. Vide a summons dated 17th February 2025, the applicant in the lower court file moved the court seeking revocation and annulment of the Certificate of Confirmation of Grant. The respondents in the lower court file filed their respective replying affidavits with the 1st respondent’s dated 13th March 2025 and the 2nd respondent’s replying affidavit dated 7th April 2025. The applicant filed a further affidavit dated 1st April 2025. 4. The case proceeded by way of viva voce evidence, and a ruling delivered on 17th June 2025. This is the ruling which is subject of this appeal. ***Back ground.*** 5. The deceased in this case died intestate on 9th June 2006. He was survived by three children namely; Samuel Karanja Nyoike, Margaret Nyambura Mbugua and Mary Nyambura Wainaina. 6. On 5th May 2016, the court issued Grant of Letters Intestate to the Samuel Karanja Nyoike, Mary Nyambura Wainaina and Margrate Nyambura Mbugua. Later on 12th October 20216, Mary Nyambura Wainaina, filed summons seeking confirmation of grant, and identified the deceased estate as comprising of Land Parcel Kiambaa/Kihara /2860, and proposed that the land parcel be inherited by Mary Nyambura absolutely. 7. Subsequently, Samuel Karanja Nyoike filed a protest to the proposed mode of distribution as proposed by Mary Nyambura, stating that the estate of the deceased comprised of Land Parcel 2860, and proposed that the land parcel be sub divided equally between the three children of the deceased. 8. The trial court the issued an order to the parties directing them to appear before the chief of Kihara Location to attempt an amicable settlement. The parties filed the finding of the elders dated 21st December 2016, with the proposal that the land be sub divided equally between the children of the deceased. 9. Based on this, the court delivered a ruling dated 5th July 2017, and noted that if the findings of the Local Administration were to be adopted by the court, then all the parties must be in agreement. The court further indicated that the application was canvassed by way of viva voce evidence, and that the court based on the evidence presented before it ruled that the land parcel, 2860 be shared equally between the three beneficiaries. 10. Following the ruling of Hon, Stella Atambo, the then trial magistrate, a certificate of confirmation of grant was issued to Mary Nyambura Wainaina, confirming the mode of distribution of the land into three equal portions. The Certificate of confirmation is dated 22nd November 2017. None of the parties appealed against the decision of the court. 11. The applicant on 17th February 2025 filed the impugned application, seeking the prayers as set out on the face of the application. In the ruling dated 17th June 2025, the court found in favour of the applicant and proceeded to make the following orders:- a) That the certificate of Grant issued on 5th May 2026 and confirmed on 22nd November 2017 is hereby revoked. b) That Mary Nyambura Waininina is now appointed as the administrator of the estate. c) That the estate of the deceased being land Parcel 2860, be distributed to the applicant, Mary Nyambura Wainaina. d) That the certificate of confirmation shall issue to the administrator in those terms. e) Each party shall bear their own cost. **Evidence.** 12. Vide the application dated 17th February 2025, the applicant sought that the certificate of Confirmation of Grant issued to the applicant herein on 22nd November 2017 be revoked and annulled. That the deceased land parcel No. Kiambaa/Kihara/328 and Kiambaa/Kihara 2859 be included in the list of the deceased estate and /or in this succession cause. The applicant further sought for prayers No. Kiambaa/Kihara 2960 & 2859 which were allegedly fraudulently sub-divided from the deceased’s original; parcel of Land No. Kiambaa/Kihara/855 for distribution for proper distribution of the same to the respective beneficiaries in equal shares. 13. The application is premised on the grounds that the applicant in the application is the daughter to the deceased. That Samuel Ngere Nyoike alias Samueul Karanja Nyoike (now deceased) is the brother to the applicant, and was survived by his widow/wife Njeri Karanja, who is the registered owner of Land Parcel Kiambaa/Kihara/2859, which was wrongly hived out from the deceased land parcel No. Kiambaa/Kihara/855. 14. That t Margrate Nyambura Mbugua is the widow/ wife to the applicant’s brother James Mbugua Gitau (deceased), and that she is the registered owner of land parcel Kiambaa/Kihara/328 which was closed on sub division which became land parcel No. Kiambaa/Kihara/T.808 and T809. 15. The applicant disposes that the parcel of land was sub-divided in order to conceal and deprive the applicant from getting her rightful share. That at the filing of the succession cause, the applicant was not aware of the existence of other properties owned by the deceased , as some of the properties relating to the deceased estate were in the custody of the respondents, otherwise hidden in order to deprive the applicant of her rightful share. As such, the respondents failed to disclose all the property’s owned by the deceased. 16. That the applicant who is a daughter ought to be given a high priority that the respondents in the administration and distribution of the deceased estate. That if the order’s sought are not granted, the applicant will be deprived most of her father’s property taking into account that Margrate Nyambura Mbugua and Njeri Karanja are the ones who have benefited by sharing the larger part of the deceased’s estate and as a consequence the applicant has suffered heavy loss and damage. 17. The application was opposed through the replying affidavit sworn by the wife to Samuel Karanja. She deponed that at the time of the death of the deceased, only one property, being land parcel 2806 was in the name of the deceased, and that the same had been shared equally between the applicant and the two respondents. She further deponed that land parcel 2859 was not fraudulently hive from Land parcel 855. That the court had pronounced itself in the ruling dated 6th July 2017 where it directed that land parcel 2860 be distributed amongst the applicant and the respondents. 18. The 2nd respondent in opposing the application deponed that Land Parcel 2860 has never formed part of the deceased estate, since at the time of his demise, the same had already been subdivided and transferred prior to his death that the same was allocated to her during the lifetime of the deceased. That the court having ruled on the issue in regard to the land parcels in question, that the matter is now res judicata , and that the court had had no jurisdiction to entertain a challenge to title or review its own decision, an that the applicant neither appealed or sought to review the ruling dated 5th July 2017. 19. In her evidence in chief, the applicant testified that her father’s property was to be sub divided between his three children. That when he died the property was sub divided, and each of her brothers got land measuring 100 x 100 , while on here part , she got 50 x 100. In cross examination, she admitted that vide succession cause in 2025, that the property to be inherited was land parcel 2860 and that prior to his death, her father had sub divided his land and given land to her brothers. Her evidence was supported by Hannah Ngatha, who is a daughter to the applicant. 20. The 1st respondent informed the court that the succession filed in court, the court had established that the property that was available for sub division in respect to the deceased estate, and had ordered that the same be distribute between the two sons and the applicant in equal shares. She maintained that the deceased had given land to his two sons and transferred the same prior to his death. That she later inherited land from her husband. 21. The 2nd respondent told the court that her land was given to her husband by the deceased, and that the same later sub divided into two portions. That land parcel; 2860 did not belong to the applicant as the deceased during his lifetime had called his children and sub divided the land into 3 equal portions. **Analysis and Determination.** 22. I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the written submissions filed by the appellant. 23. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [see Peters -vs- Sunday Post Limited [1958] E.A 424]. 24. In *SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123* it was stated as follows:- “…………………….this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 25. Likewise in *Gitobu Imyanyara & 2 Others -vs- Attorney General [2016] eKLR,* the court of Appeal stated thus;- “An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 26. Therefore the appropriate standard of review in cases of appeal can be summarized in the following three principles:- (1) On first appeal the court is under a duty to reconsider and re- evaluate the evidence on record and draw its own conclusions. (2)In reconsidering and re-evaluating the evidence of the first appeal court must bear in mind and give due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. (3)It is not open to the first appellate court to review the findings of a trial court simply on the basis that it would have reached a different conclusion had it been hearing the matter for the first time. 27. The main issue for determination is whether the learned magistrate erred in law and fact in finding that a certificate of confirmation of Grant could be revoked by revoking the certificate of Confirmation confirmed on 22nd November 2017. 28. I have looked at the application dated 17th February 2025, and the grounds raised by the applicant. In paragraph (b) of the application, the applicant alleges that of Land Parcel Kiambaa/Kihara/2859, which was wrongly and fraudulently hived out from the deceased land parcel No.Kiambaa/Kihara/855. The applicant did not particularize alleged fraud. 29. It is trite that allegations of fraud must not only be specifically pleaded, but have also to be proved to standard of proof that is higher than on a balance of probability, but lower than beyond reasonable doubt. See the case of *Demutila Nanyama Pururmu vs Salim Mohamed Salim (2021) eKLR* where the Court of Appeal cited with approval the case of *Vijay Morjaria vs Nansingh Madhusingh Darbar & Another (*2000) eKLR, where Tunoi, JA. (as he then was) stated as follows:- *“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”* 30. In regard to the prayer for inclusion of the two properties to form part of the deceased estate, the court finds that the applicant having failed to prove fraud on the part of the respondents, this prayer cannot be sustained. 31. I have taken liberty to peruse the lower court record, and specifically the ruling of Honourable Stella Atambo. The ruling arose out of an application in which one of the parties objected to the proposed mode of distribution as was the proposed by the applicant, who is the respondent in this appeal. The parties were referred to the area chief to settle the case amicably, and the later filed a finding of the chief. 32. In her ruling, the trial magistrate stated that the application had been heard by way of viva voce evidence, and that upon considering the evidence, she made orders that the land parcel be sub divided into three equal portions. 33. When the learned magistrate retired to write the impugned ruling, she seems to have disregarded the existence and or the contents of the ruling of her sister magistrate, who had categorically granted leave of appeal to the parties. To this end, and very great respect, I find that the learned magistrate erred in law and facts by assuming jurisdiction thereby sitting on the court’s appeal. None of the parties appealed that particular decision, but instead, the applicant decided to alter the landscape of the case before court by filing the impugned application, which this court finds irregular. 34. I have looked at the evidence tendered by the applicant in support of the application. Upon perusal of the proceedings, I find that the applicant was all along involved in the proceedings. That she was appointed as one of the administrators, and indeed filed the Summons for Confirmation of Grant in this succession cause. 35. Nowhere in her evidence did she claim her entitlement to the land in question based on the fact that the two respondents had been give given gifts inter vivos. The substratum of her case is based on allegations of fraud, which particulars were neither particularized, nor proved. 36. I have looked at the submission filed by the respondents in support of the application in the lower court. Hon. Justice Mwongo, faced with same scenario in the case of in *re Estate of Njiru Rundie alias Rundie Njue alias Benjamin Njue Rundie (Deceased) [2026] KEHC 308 (KLR*), held as inter alia:- *“18. From the appellant’s pleadings before the trial court, the core ground cited for revocation is that there was unfair distribution of the estate. This is not one of the proper grounds provided for in Section 76 for revocation as it touches on the implementation of the certificate of confirmation and not on the acquisition of the grant of representation itself. “* 37. In *re Estate of Prisca Ong'ayo Nande (Deceased) [2020] KEHC 6553 (KLR),* W. Musyoka, J. after analyzing section 76 and discussing the meaning of a grant within the provisions of the laws governing succession in Kenya, correctly in my view, stated thus: *“ 17. I have very closely perused through the provisions of the Law of Succession Act, and I have not come across any provision that provides a remedy to a person who is aggrieved by confirmation orders. Sections 71, 72 and 73 of the Law of Succession Act, which deal with confirmation of grants, do not address the question of redress for parties who are unhappy with the confirmation process, nor do they deal generally with Laws in the confirmation process. As stated above, section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act, for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one same are obtained through abuse of procedure.”* 38. The crux of the respondent’s application was to the effect that she was dissatisfied with the mode of distribution. In the words of Justice Mwongo, the core ground cited for revocation is that there was unfair distribution of the estate. This is not one of the proper grounds provided for in Section 76 for revocation as it touches on the implementation of the certificate of confirmation and not on the acquisition of the grant of representation itself. The aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one same are obtained through abuse of procedure. 39*.* In the upshot, I find the appeal is merited, and the same is allowed. The ruling in the lower court is hereby set aside and is substituted with an order reinstating the Certificate of confirmation. 40. The respondent shall bear the costs of this appeal. **DELIVERED, DATED AND SIGNED ON THIS 3RD DAY JULY, 2026.** **JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU.** **JUDGE.** In the presence of:- Court Assistant- Mr. Kibet. Appellants – Present. Respondent –Present.