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Maina v Maina (Succession Appeal E031 of 2025) [2026] KEHC 8251 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 8251 (KLR) Republic of Kenya In the High Court at Nyeri Succession Appeal E031 of 2025 DKN Magare, J May 28, 2026 Between Leah Wangui Maina Appellant and Tabitha Njoki Maina Respondent Judgment 1.This is an appeal from the decision of Hon. Grace Kirugumi (PM) given on 22.07.2025 in Karatina Succession Cause Number E172 of 2021. The decision in the lower court involved summons for revocation dated 23.10.2024. The lower court dismissed the same resulting in the appeal herein. 2.The appellant was aggrieved with the decision and set forth the following grounds of appeal:a.That the Honourable trial magistrate misdirected herself in failing to appreciate that the grant was obtained fraudulently by making a false statement and by concealment of crucial facts, contrary to section 76 of the Law of Succession Act.b.That the learned trial magistrate erred in fact in finding that the Appellant was present in court on the 10th of May, 2022 during the hearing of the application for confirmation of grant, notwithstanding the overwhelming evidence submitted as to her whereabouts on the said date of confirmation of grant.c.That the Honourable trial magistrate erred in fact and in law in dismissing the Appellants’ application allegedly due to absence of affidavits sworn from the rest of the parties who were present in court on 10th May 2022 to indicate that they lied to the court on those present notwithstanding the provisions of the law on self incrimination by a party, hence occasioning a miscarriage of justice.d.That the learned magistrate failed to appreciate the elements of forgery by the Respondent and basically relied on immaterial considerations in dismissing the Appellant’s summons for revocation of grant, contrary to the evidence on record and applicable legal principles.e.That the learned magistrate erred in fact and in law by failing to appreciate that there was no other evidence by the Respondent negating the evidence of the Appellant that indeed she was recuperating from a surgery on 10th May, 2022 and was not present in court on the said date.f.That the learned trial magistrate erred in fact and in law in failing to consider that the Appellant, as a beneficiary of the deceased, was not consulted or included in the process of petitioning for the grant, in breach of the procedural requirements.g.That the Honourable trial magistrate erred in fact and in law by failing to appreciate that the distribution of the deceased’s estate was not done in a fair and just manner, and instead dismissed the Appellant’s summons for revocation of the grant on grounds that did not address the core merits of the application. 3.The main linchpin of the matter was that the appellant’s signature in the succession documents was forged. She was indicated as 29 years. She stated that she was 45 years old. She claimed that on 18.2.2022, she was recuperating after a surgery and could not have attended court. However, the confirmation was on 10.05.2022 before the surgery. In Wambui v Mwangi & 3 others (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR), the court of appeal [RN Nambuye, Mk Koome & Msa Makhandia, JJA] addressed the question of fraud as follows:At the conclusion of the trial, the learned Judge analyzed the record and identified issues for determination. On fraud attributed to the 2nd respondent, the learned Judge took into consideration the definition of fraud as set out in Black’s Law Dictionary, 9th Edition at page 131 where fraud is defined as: “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Further, the decision in the case of Railal Gordhanbhai Patel vs. Lalji Makanji [1957] E.A 314 on the threshold for proof of fraud and applying the above threshold to the record ruled that, in the Judge’s opinion, the evidence tendered on record had demonstrated clearly that the 2nd respondent fraudulently led the High Court proceedings with the sole aim of defrauding the 1st respondent of the suit property, by presenting himself as Julius Mutugi Muchemi holder of ID card No. xxxx. That upon investigation by PW2, it was revealed that the rightful holder of the above ID card number was one Mugo Gitari. It was pursuant to the above falsehood that the 2nd respondent obtained an ex parte judgment through fraud and caused it to be executed through the fraudulent sale of the suit property to the 3rd respondent through a public auction allegedly to recover a debt owed to him by the 1st respondent knowing that it was a fraudulent scheme to defraud the 1st respondent of his property. The Judge therefore ruled that all transactions stemming from the fraudulent High Court proceedings were all rooted on a fraudulent and illegal decree and could not in law be sanctioned by a court of law as they were null and void abinitio and could not therefore bestow any rights to any party either directly or indirectly affected by those proceedings. 4.According to Black’s Law Dictionary, 11th edition:“Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”. 5.In Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, the Court of Appeal stated as follows: -48.The case was akin to Ruben & Another vs. Great Fingall Consolidated (1906) A.C 439 where Ruben and another person advanced money to the company secretary for his own purposes on the security of a share certificate issued by the secretary certifying that they were registered in the companies register of shareholders as transferees of shares. The secretary forged the signatures of the company directors and affixed the company seal on the certificate without authority, but otherwise the certificate was in accord with the Memorandum and Articles of Association of the company. The company refused to register Ruben and his friend as owners of the shares and they sued the company. The dispute went all the way to the House of Lords which decided, affirming the Court of Appeal, that the company was not estopped by the forged certificate from disputing the claim of the appellants and it was not responsible for the wrongful actions of the secretary.49.Lord MacNaghtenwas forthright in his exposition of the matter:-“The thing put forward as the foundation of their claim is a piece of paper which purports to be a certificate of shares in the company. This paper is false and fraudulent from beginning to end. The representation of the company’s seal which appears upon it, though made by the impression of the real seal of the company, is counterfeit and no better than a forgery. The signatures of the two directors which purport to authenticate the sealing are forgeries pure and simple. Every statement in the document is a lie. The only thing real about it is the signature of the secretary of the company, who was the sole author and perpetrator of the fraud. No one would suggest that this fraudulent certificate could of itself give rise to any right or find or affect the company in any way. It is not the company’s deed, and there is nothing to prevent the company from saying so.Then how can the company be bound or affected by it. The directors have never said or done anything to represent to lead to the belief that this thing was the company’s deed. Without such a representation there can be no estoppel.The fact that this fraudulent certificate was concocted in the company’s office and was uttered and sent forth by its author from the place of its origin cannot give it any efficacy which it does not intrinsically possess. The secretary of the company, who is a mere servant, may be the proper hand to deliver out certificates which the company issues in due course but he can have no authority to guarantee the genuineness or validity of a document which is not the deed of the company.”So wasLord Loreburn L.C, who stated:-“I cannot see upon what principle your Lordships can hold that the defendants are liable in this action. The forged certificate is a pure nullity. It is quite true that persons dealing with limited liability companies are not bound to inquire into their indoor management, and will not be affected by irregularities of which they had no notice. But this doctrine, which is well established, applies only to irregularities that otherwise might affect a genuine transaction. It cannot apply to a forgery.”Lord Daveytoo, stating thus;“The appellants have no doubt been grossly defrauded, but the question is whether they can shift the loss on to the shoulders of the innocent. The company has done literally nothing in the transaction, and could do nothing, because in no stage of the transaction did it come before the board of directors, which alone was entitled to speak and act for it.”50.And so it is in the matter before us. The documents which perpetrated the fraud of share transfer were not even presented to the Company Registry by the real company secretary of West End.They were all forgeries. They never bound West End in any way. The Registrar of Companies failed in his statutory duty to West End and members of the public who rely on the authenticity of documents entrusted to that office. The Registrar easily allowed the perpetration of the fraud and was complicit in it as he allowed the disappearance of annual returns filed by West End and copies of official receipts issued to it. 6.How should laws evolve to better serve society's moral values? This ruling will, however, turn on what the law posits as a fundamental right to be heard. No man should ever be condemned unheard as expressed in the truism that audi alteram partem principle. In Rex vs Deferral 1937 AD 370 and 373, the court posited that:The audi alteram partem principles literary means, “hear the other side’. This means that no ruling of any importance, either on the merits or on procedural points, should be made without giving both parties the opportunity to express their views. The audi alteram partem principle is followed in judicial proceedings, in our country, along with the rights such as legal representation, the right to adduce and challenge evidence in cross examination and the right to present ones evidence to the dispute or claim”. 7.The estate was concluded in 2023. Even if they were, the recourse is not in the succession court. I am comforted by the decision of the Supreme Court in the case of Kiebia v M’lintari & another (Civil Case 10 of 2015) [2018] KESC 22 (KLR) (5 October 2018) (Judgment):58.What are we to make of these changes? Several interpretations are plausible. It is now clear that customary trusts, as well as all other trusts, are overriding interests. These trusts, being overriding interests, are not required to be noted in the register. However, by retaining the proviso to Section 28 of the Registered Land Act (now repealed), in Section 25 of the Land Registration Act, it can be logically assumed that certain trusts can still be noted in the register. Once so noted, such trusts, not being overriding interests, would bind the registered proprietor in terms noted on the register. The rights of a person in possession or actual occupation of land, as previously envisaged under Section 30 (g) of the Registered Land Act, have now been subsumed in the “customary trusts” under Section 25 (b) of the Land Registration Act. Thus under the latter Section, a person can prove the existence of a specific category of a customary trust, one of which can arise, although not exclusively, from the fact of rightful possession or actual occupation of the land. 8.There are no materials to show that the record is incorrect. It may be true that the appellant was going to be in hospital on 13.05.2022. It is also true that one of the brother died 2 days after confirmation and one day before the appellant was admitted. However, nothing shows that the appellant’s signature was forged and by whom. 9.Parties also did not address the court on the aspect of occupation by the new buyer. If he was a bona fide purchaser, he should have entered the land. The appellant needed to address the court, whether she left the estate to the purchaser. All is not lost since, if she gets evidence of the forgery, the title can be vitiated. For now, she left so much to fate. In the case of Wambui v Mwangi & 3 others (Civil Appeal 465 of 2019) [supra], the court addressed the question of the court record as follows:51.Issue number 1 and 2 are interrelated and will be addressed as one. Our position upon evaluation of the record is that the appellant’s complaint on the two issues stems from the trial court’s conclusions drawn on the determination of issues as to whether: the sale of the suit property to the 3rd respondent at a public auction in execution of a decree that was issued in the High Court suit in favour of the 2nd respondent was lawful; the 3rd respondent acquired a valid title over the suit property and, lastly, whether the appellant acquired a valid title over the suit property from the 3rd respondent. The trial court assessed the record as laid before it, made observations and findings thereon and gave reasons for drawing out the conclusion that the appellant’s title to the suit property was tainted with fraud, nullity, illegality, and unprocedurally and was therefore unsanctionable by the trial court.56.We have on our own considered the conclusions reached above by the Judge in light of the totality of the record assessed above and find no basis for faulting the Judge’s conclusion that Julius Mutugi Muchemi was a fraudster and therefore the entire proceedings purportedly initiated in the said High Court against the 1st respondent were fraudulent especially when it is evident from the record that there was no basis for initiating the same against the 1st respondent. 10.The record before the court indicates that the appellant signed the court record. There needed to be more to show that she is not the one who signed. In absence of such evidence, there is no material to conclude that she did not sign. We cannot impeach a court record on the basis of conjecture, surmises and syllogism. There has to be solid evidence of the same. 11.In the circumstances, the application for revocation was properly found to be unmerited and consequently dismissed. 12.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 13.Costs 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) 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. 14.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), 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 litigation22.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. 15.This is a fight between siblings. I shall not add more fuel to the fire. Each party shall bear their own costs. Determination 16.The court makes the following orders:a.The appeal lacks merit and is accordingly dismissed.b.Each party to bear its own costs.c.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 28TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ms. Mukanda for the AppellantNo appearance for the RespondentCourt Assistant – Martin