https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1198

Kuko & another v Ali & another (Civil Appeal E067 of 2021) [2026] KECA 1198 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1198 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E067 of 2021 PM Gachoka, WK Korir & L Ndolo, JJA June 26, 2026 Between Truphena Tapem Kuko 1st Appellant Leila Mohammed Ali 2nd Appellant and Sophia Ali 1st Respondent Farida Ali 2nd Respondent (An appeal arising from the judgment and decree of the High Court of Kenya at Eldoret (H.A. Omondi, J.) delivered on 12th February 2020. in Citation Cause No. 45 of 2017) Judgment 1.Before his death, Mohammed Ahmed Ali was a businessman.In the course of his lifetime, he met the 1st appellant and two other women whom he married. He was blessed with three issues: the 2nd appellant and the respondents. 2.After the death of Ali, there was no agreement between the beneficiaries of his estate and a dispute on the distribution of the estate arose. The respondents filed a citation dated 16th November 2017, directing the appellants to accept or decline to take out letters of administration on behalf of the estate of the deceased. In the alternative, the respondents sought to be made the administrators of the said estate. In that vein, the respondents petitioned for letters of administration as the biological daughters of the deceased vide a petition dated 8th November 2017. They also filed a joint supporting affidavit sworn on 8th November 2017. Listing the beneficiaries, including the appellants and themselves, the respondents urged the court to administer the estate and devolve the deceased’s assets amongst the beneficiaries. 3.The 1st appellant entered appearance on 30th July 2018. She filed her replying affidavit sworn on 22nd August 2018 and a further affidavit sworn on 4th January 2019. Ultimately, she deposed that it was in the interest of justice that the respondents and herself be appointed administrators of the deceased’s estate. 4.In the proceedings at trial, one Susan Robinson was joined as an interested party on the strength of the fact that she was previously married to the deceased on 13th July 1980 but separated in 1994. She sought to be joined to safeguard the interest of her children as beneficiaries of the deceased’s estate. 5.At the hearing of the citation, the parties testified and adduced their documentary evidence. In her judgment dated 12th February 2020, Omondi, J., as she then was, after setting out the main issues for determination, held in part, as follows: 50.The citees point out that the children of the first and second houses, save for the grandchild, Norman Kundu are all adults, and are since done with school. Consequently, their needs are not the same as those of the children of the third house who are still in school and are yet to clear their education. 51.Reference has been made to Section 28… 52.Whereas the citees lament about her fragile situation may hold some water, it is not lost to me that she has solely benefitted from the rental proceeds relating to the Kitale property, to the exclusion of all other beneficiaries, and has not rendered any accounts. It is therefore not too far- fetched to conclude that she has used those proceeds to acquire the properties referred to, and this shall then be subjected to the criteria applicable under section 82 (ii) b (sic) of the Law of Succession. This will therefore reduce her share in the Kitale property and other assets. The interested party is entitled to a claim in the matrimonial home in Kitale and I consider her contribution at 30%. 53.The deceased is said to have left behind 6 children and a grandson who are entitled to the estate of the deceased. Yet there seems to another set of dependents who are mentioned by the citors - these are the children from the first marriage. I therefore direct that the 1st citors (sic) and 1st citee take out letters of administration of the estate jointly, and within 7 days from today, they must set out a proposed mode of distribution on all the assets of the estate rather than singling out only one prime property, and they must also include all the beneficiaries. In the event of failure to agree, the court will have the final say on distribution.” 6.The appellants are aggrieved by those findings, hence this appeal. They filed their notice of appeal dated 12th February 2020. They also filed their joint memorandum of appeal dated 23rd April 2021 that raised seven grounds disputing the findings of the learned judge. We have taken the liberty to summarize those grounds as follows: that the learned judge erred in awarding the interested party part of the matrimonial property when there was glaring evidence that the property was purchased during the time she had separated with the deceased; in addition, it was the 1st appellant who bought, transferred and developed the property; that the trial court was wrong in awarding the interested party 30% of the matrimonial property when she failed to prove contribution; that the trial judge redistributed the assets of the deceased against the wishes of the deceased set out in the will; and that the trial judge misdirected herself when concluding that the deceased died intestate. 7.In view of the foregoing, they prayed that the appeal be allowed, the judgment of the trial court be set aside and that the appellants be awarded costs of this appeal and those at trial. 8.The appeal was canvassed by way of written submissions that were highlighted orally on 20th April 2026. Learned counsel Mr. Sala, was present for the appellants, while learned counsel Mr. Orenge appeared for the respondents. 9.In the appellants’ written submissions dated 14th October 2025, counsel formulated three issues for determination. On the first issue, he submitted that the trial court erred in awarding the interested party a share of the estate despite the undisputed fact that she was divorced and made no contribution to the acquisition of the main property in dispute. 10.He explained that once Talak (divorce) was initiated, culminating in divorce proceedings, the Iddah (waiting) period elapsed; that following divorce, parties had no right to claim matrimonial property. He augmented his argument by citing the Qur’an and the cases of Fatuma Abdallah vs. Said Mohammed [2012] and Mohamed Fugicha vs. AG & others [2015] eKLR. He submitted that since the interested party ceased to be a wife in 1991, she had no legal claim over property acquired in 1992. 11.On contribution to the matrimonial property, Mr. Sala submitted that since the interested party failed to demonstrate contribution, she was not entitled to 30% of all that parcel of land namely L.R. No. 2116/XVI/90 Kitale. He continued that the deceased left a valid, unchallenged will. However, the trial court disregarded that evidence. 12.Finally, counsel submitted that the 1st appellant was inequitably left with 8% of the estate, yet she had proved contribution on her part and had lived on the property for 34 years. He urged this Court to find that the learned judge occasioned a miscarriage of justice as her decision went against the deceased’s wishes, Islamic law and the principles on administration of matrimonial property. 13.The respondents opposed the appeal. They filed written submissions dated 27th November 2025. Firstly, learned counsel for the respondents submitted that leave to appeal was never obtained; a crucial step in succession matters. The appeal was therefore defective, a non-starter and was for dismissal. Mr. Orenge then raised a second technical issue that the appeal was filed one year after judgment had been delivered. He pointed out that though the appellants filed their notice of appeal on time, the memorandum of appeal was filed outside the 60-day statutory period. There being no reasons explained for the delay, he urged this Court to strike out the appeal on that ground. 14.Turning to the merits of the appeal, counsel submitted that the findings of the learned judge were proper and have no fault. He stated that no reasons had been advanced to interfere with the findings of the trial court. For those reasons, learned counsel prayed that the appeal be dismissed with costs. 15.We have considered the parties’ submissions, examined the record of appeal and analyzed the law. As a first appellate court, an appeal 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 and draw its own conclusions though it should always bear in mind that it did not have the advantage of seeing or hearing the witnesses and thus should make allowances in this respect. [See Gitobu Imanyara & 2 others vs. Attorney General [2016] eKLR]. 16.Having condensed the issues raised in this appeal, we find that the main issues for determination revolve around the competency of the appeal and if competent, whether this Court should overturn the findings of the trial court. 17.On the competency of the appeal, the respondents raised an objection to the effect that the appeal was defective as it was filed without leave of the Court. This was on the premise of the fact that this, being a succession dispute, leave had to be obtained first. While that was the position at the time the appeal was filed, the Supreme Court has since settled the issue in the case of Wandi vs. Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR) (Civ) by holding that a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter is appealable to the Court of Appeal as of right. 18.As such, that objection must fall because the said pre- requisite is no longer a mandatory requirement before filing an appeal in this Court. 19.On the second issue raised by the respondents regarding the competency of this appeal, the respondents contended that the appeal was filed one year after judgment had been delivered. The respondents state that though the appellants filed their notice of appeal dated 12th February 2020 on time, the memorandum of appeal dated 23rd April 2021 was filed outside the 60-day statutory period. It was argued that the certificate of delay did not absolve the appellants from the delay. 20.Rule 86 of this Court’s Rules provides that any person affected by an appeal may before or after institution of the appeal, apply to have it struck out on the ground that that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time; provided that such an application shall not be brought after the expiry of thirty days after the date of service of the record of appeal. 21.In this case, the respondents only raised the issue in their submissions. Nothing else surmounted their justification for the issues raised. In any event, if at all the allegations were bona fide, it would have been prudent for the respondents to serve the appellants with the necessary application inviting this Court for a determination of the same. Instead, they opted to steal a march on the appellants. Given that the allegations are without justification for proof, we shall disregard those submissions on those grounds. 22.On looking at the parties to the dispute at trial, this Court observes that the interested party, namely Susan Robinson, actively participated in the proceedings at trial but for some reason, was not joined in these proceedings. As a Court, we are raising this preliminary issue suo motu as it is apparent that the prayers sought by the appellants in this appeal will contingently have a bearing on the rights granted to her by the trial court. 23.We say so because one of the issues raised by the appellants was that the trial court improperly granted the interested party a 30% share of the matrimonial property, considered to devolve in the estate of the deceased. This was the holding of the trial court in paragraph 52 of the judgment. 24.The audi alteram partem rule comprehensibly governs the right of a party to a dispute to be heard. The rule is to the effect that any party that may be affected by the outcome of a dispute ought to be given an opportunity to ventilate thier case. This Court in Pashito Holdings Limited & Another v. Paul Nderitu Ndungu & 2 Others [1997] eKLR held that:“The rule of audi alteram partem, which literally means 'hear the other side', is a rule of natural justice. It is an indispensable requirement of justice that the party who has to make a decision shall hear both sides, giving each an opportunity of hearing what is urged against him.” 25.Further, this Court in Kenya Revenue Authority & another vs. Mutamba & 26 others [2022] KECA 808 (KLR) set out the legal principle requiring no party to be condemned unheard by relying on the extract in Halsbury Laws of“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.” 26.What is the effect of the absence of the interested party’s participation in this appeal? Was she a necessary party to the appeal before us? In the case of Amon vs. Raphael Tuck & Sons Ltd (1956) 1 All ER 273, Devlin, J. held at p. 286-287 as follows, in setting out the constituent elements of a necessary party:“What makes a person a necessary party? It is not of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately …the Court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it would be necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. 27.As stated earlier in our judgment, the trial court considered the evidence of the parties in the trial proceedings, including the interested party. In its analysis of the dispute before it, the trial court found that the interested party was a legitimate beneficiary, opining that she ought to inherit a 30% share of the matrimonial property based in Kitale. 28.It is not clear why the interested party was not joined as a party in this appeal. It is apparently evident that whatever the outcome, the interested party will be affected by it. Whatever the outcome of the appeal, the interested party stands to lose the 30% share granted by the trial court, as this was one of the grounds raised by the appellants in their memorandum of appeal. 29.We find that the interested party is a fundamental party in these proceedings. To make any decision absent her participation will, beyond any peradventure, lead to a miscarriage of justice. This procedural lapse cannot be cured by the oxygen principles nor by Article 159 of the Constitution. 30.Accordingly, we cannot determine the merits of the appeal without the participation of the interested party. Even so, considering the appeal on merit, we note that the learned judge ably considered the evidence and the law and we find no fault in the way she arrived at her decision. So whichever way one looks at this appeal, it is for dismissal. We are therefore left with no option but to dismiss the appeal in its entirety. Since this is a family dispute, each party shall bear their own costs of the appeal. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE, 2026.M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALW. KORIR......................................JUDGE OF APPEALL. M. NDOLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR