https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12538

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCFA/E011/2025 KEVIN OTIENO ONGILA AND ANNA ADHIAMBO ONGILA VS WELLINGTON ODIYO ORIEMA AND REFA ATIENO ELLON JUDGMENT ***(Being an appeal from the judgement of the Hon. K. Cheruiyot delivered on 24th April, 2025, in Chief Magistrates Court at Kisumu Succession Suit No.*** ***424 of 2020)*** # INTRODUCTION * 1. This appeal arises from the judgment of Hon. K. Cheruiyot, Resident Magistrate, delivered on 24th April, 2025, in Kisumu Chief Magistrate’s Court Succession Cause No. 424 of 2020. 2. Before the trial court, the Appellants petitioned for a Grant of Letters of Administration Intestate in respect of the Estate of Morris Ongila Oriema (Deceased). The 1st Appellant is a son of the deceased, while the 2nd Appellant is the widow of the deceased. 3. The Respondents filed an objection to the making of the grant on various grounds. The 1st and 2nd Respondents, who are respectively the brother of the deceased and his sister-in-law, contended that they are beneficially entitled to an equal share of the one-quarter (¼) portion of Land Parcel No. Kisumu/Wathorego/1877 registered in the name of the deceased, which they alleged he held in trust for other family members. * 1. The Respondents further asserted that the entire parcel of land known as Kisumu/Wathorego/1877, measuring approximately 1.0 hectare, was registered in the names of four brothers, namely John Odero Oriema, Erick Odongo Oriema, Morris Ongila Oriema, and Fanuel Obego Oriema, as custodians of their respective households, their late father having had several wives. According to the Respondents, the other family units were satisfied with the mode of distribution, with the dispute arising only from the Appellants’ household. 2. It was the Respondents’ case that the one-quarter (¼) share registered in the name of Morris Ongila Oriema was held in trust and was intended to be shared equally among the beneficiaries of that household. They further alleged that the Appellants concealed material facts when petitioning for the grant. Upon considering the evidence and submissions presented, the trial court found that the deceased’s one-quarter (¼) share in Land Parcel No. Kisumu/Wathorego/1877 was held in trust and ordered that the same be distributed as follows: 1. The Estate of Morris Ongila Oriema – one-third (1/3) 2. Wellington Odiyo Oriema – one-third (1/3) 3. Refa Atieno, wife of Fanuel Obego Oriema – one-third (1/3) 3. Being dissatisfied with the said judgment and distribution, the Appellants lodged the present appeal challenging the findings and determination of the trial court. # SUBMISSION BY PARTIES **Appellants’ Submissions** 1. The Appellants set out the genealogy of the family of the late Joel Oriema Ojany, who was married to four wives, namely: 1. Magarita Oriema (deceased), who had two sons, Charles Onyango Oriema and Richard Adero Oriema (both deceased). 2. Salome Oriema (deceased), who had two sons, Erick Odongo Oriema and Walter Oraro Oriema (both alive) 3. Peres Oriema (deceased), who had three sons, namely Morris Ongila Oriema (deceased), whose estate is the subject of these proceedings, Samwel Oricho Oriema (deceased), and Wellington Oriema (alive), the 1st Respondent herein. 4. Rael Oriema (alive), who had two sons, Fanuel Obego Oriema and Joel Oriema Oriema (both deceased). 2. On the first ground of appeal, the Appellants submitted that the trial court lacked jurisdiction to hear and determine questions relating to ownership of land and the existence of a trust. It was contended that issues concerning title to land and trusts fall outside the jurisdiction of a succession court and are reserved for determination by the court vested with jurisdiction over land matters. 3. The Appellants further submitted that the Respondents do not qualify as beneficiaries or dependants of the deceased’s estate for purposes of succession. Relying on Section 29 of the Law of Succession Act, they argued that the Respondents do not fall within the category of persons entitled to inherit from the estate of the deceased and, consequently, have no lawful claim to the estate. 4. With regard to the allegation that the Appellants had been allocated alternative parcels of land and were therefore not entitled to a share of the suit property, the Appellants contended that no evidence was tendered to support such a claim. They maintained that the Respondents’ objection was merely an attempt to advance personal interests at the expense of the rightful beneficiaries of the estate. The Appellants further urged the court to award costs in their favour. # Respondents’ Submissions 1. The Respondents traced the history of the dispute and the lineage of the family, contending that the one-quarter (¼) share of Land Parcel No. Kisumu/Wathorego/1877 registered in the name of the deceased was held by him in trust for other members of the family who had a beneficial interest therein. 2. The Respondents maintained that they were not asserting proprietary rights over land held in trust, nor were they seeking a declaration that a trust existed so as to confer upon them ownership rights. Rather, their claim was that they were beneficiaries and/or dependants entitled to consideration in the distribution of the estate. 3. The Respondents opposed the appeal on several grounds. First, they submitted that the Appellants did not challenge the jurisdiction of the trial court to entertain issues relating to trust during the proceedings before the lower court and could not properly raise the issue for the first time on appeal. 4. Secondly, the Respondents argued that they sufficiently demonstrated their status as beneficiaries and/or dependants of the deceased for purposes of succession and therefore had a legitimate interest in the estate. 5. Thirdly, they submitted that they successfully established the grounds warranting the objection to the confirmation of grant and justified the intervention of the court in the distribution of the estate. 6. Lastly, the Respondents contended that, in any event, a constructive trust is an equitable remedy invoked by courts to prevent injustice and unjust enrichment. They argued that the trial court was properly entitled to invoke its inherent jurisdiction and equitable powers to make such orders as were necessary for the ends of justice. # ANALYSIS AND DETERMINATION 1. Having considered the record of appeal, the judgment of the trial court, and the rival submissions by the parties, the central issue that emerges for determination is whether the dispute before the succession court was purely a succession dispute or whether it substantially raised questions of ownership and trust over Land Parcel No. Kisumu/Wathorego/1877. 1. From the pleadings, evidence, and submissions on record, it is not disputed that the Respondents' claim is founded on the assertion that the deceased, Morris Ongila Oriema, held the one-quarter (¼) share registered in his name in trust for other members of the family. Indeed, the basis upon which the Respondents objected to the grant was that the deceased was not the absolute owner of the said share and that other persons had beneficial interests therein. 2. Although the Respondents submitted that they were not seeking a declaration of trust or ownership rights, but merely recognition as beneficiaries and/or dependants of the estate, this court finds that the distinction is more apparent than real. The question of who is entitled to benefit from an estate cannot be determined in isolation from the question of what property actually forms part of the estate. Where it is alleged that property registered in the name of a deceased person was held in trust for others, the court must first determine the nature and extent of the deceased's proprietary interest before pronouncing itself on distribution. 3. In the present case, the trial court proceeded to find that the deceased held the one-quarter (¼) share in trust and consequently distributed the same among the estate of the deceased, the 1st Respondent, and the 2nd Respondent. With respect, such a determination necessarily involved adjudicating on questions of ownership, beneficial entitlement, and trust over land. 4. This court agrees with the Appellants that the dispute transcended the ordinary mandate of a succession court. Before a probate court can distribute property, it must first be established that the property forms part of the free estate of the deceased. Where that ownership is contested and third parties assert beneficial interests founded on trust, the issue ought first to be resolved by a court clothed with jurisdiction to determine questions of title, ownership, and trust. 5. The position of the law was succinctly stated in ***Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR***, where Musyoka J. held: ## “Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through the civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrates’ courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” 1. In the same breadth, in the case of ***In Re Estate of Julius Wachira (Deceased) 2022 eKLR,*** the court pronounced itself as follows; ## “The applicants claim existence of a trust in their favour. It could very well be that such a trust does exist. However, it is not for this court to declare it. None has been demonstrated by way of declaration by a court of competent jurisdiction. Ideally, the applicants ought to have moved a civil or land court to make a declaration of trust in their favour which they would then seek to enforce against the estate. In the absence of a declaration by a court, there is no basis upon which I can declare such a trust in a revocation of grant application.” 1. The foregoing principles are directly applicable to the present dispute. The Respondents' claim is anchored on an alleged trust. Whether such trust exists, the nature of the trust, the persons entitled thereunder, and the extent of their beneficial interests are matters that require substantive adjudication by a court exercising the appropriate jurisdiction over questions of ownership and trust in land. 2. The Respondents argued that the issue of jurisdiction was not raised before the trial court and therefore cannot be raised on appeal. However, jurisdiction is not a procedural technicality that can be conferred by acquiescence, consent, or failure to object. Once a court is confronted with a matter that falls outside its jurisdiction, it must decline to proceed further. A court cannot assume jurisdiction merely because the parties failed to challenge it at an earlier stage. 1. This court therefore finds that the dispute before the trial court could not properly be resolved without first determining whether the deceased held the disputed portion of Land Parcel No. Kisumu/Wathorego/1877 absolutely or in trust for other family members. That determination goes to the root of ownership and beneficial entitlement and ought to be undertaken before the probate court can determine who the beneficiaries of the estate are and the shares due to them. 2. Consequently, it would be premature for this court, sitting as a succession appellate court, to pronounce itself on the entitlement of the Respondents as beneficiaries or dependants before the foundational question of ownership and trust is resolved by a court of competent jurisdiction. Until that issue is determined, it remains uncertain whether the disputed portion forms part of the free property available for distribution as the estate of the deceased. # DISPOSITION 1. In the result, this court pronounces itself as follows; 1. The appeal succeeds to the extent that the findings of the trial court touching on ownership, beneficial interests, and trust over Land Parcel No. Kisumu/Wathorego/1877 cannot stand. 2. The judgment delivered on 24th April 2025 in Kisumu Chief Magistrate's Court Succession Cause No. 424 of 2020 is hereby set aside. 3. The case is remitted back to the trial court for the determination of the question of ownership and/or trust over the disputed portion of Land Parcel No. Kisumu/Wathorego/1877 before a court of competent jurisdiction. 4. The parties shall be at liberty to institute and prosecute appropriate proceedings before the court vested with jurisdiction to determine questions of ownership, beneficial interests, and trust relating to the said parcel of land. * 1. Upon determination of those issues by the competent court, the resultant decree or orders shall be presented before the succession court, which shall thereafter proceed to determine the beneficiaries of the estate and their respective entitlements in accordance with the law. 2. Given the nature of the dispute and the relationship between the parties, each party shall bear their own costs of the appeal. It is so ordered. **Dated and Delivered this 30th July 2026** SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Family Date: 2026-08-02 20:15:37