https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8321

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E009 OF 2024** **MAGIGA MWITA BENETI...................................................................APPELLANT** **VERSUS** **BENTI MWITA BENETI ………………………….…………….……… RESPONDENT** **(Being an appeal from the ruling of Hon. M. O. Obiero SPM delivered on 25th January, 2024 in Kehancha SPM Court Succession Cause No. E089 of 2021)** **JUDGMENT** Vide summons dated 6th January 2023, brought under the provisions of Section 72 of the Law of Succession Act and Rule 44, 49, 63 and 73 the Applicant sought that the Grant dated 18th April 2022 be revoked; 1. Pending the hearing and determination of the summons the court be pleased to preserve the estate property known as Nyabasi Busonga/ 139 by way of restriction through the Kuria West/ East Land Registry; 2. The District Land Registrar and the District Land Surveyor Kuria East and Kuria West to visit the suit parcel of land and redistribute the land to the sons of the deceased. 3. Upon prayer No. 1, 2, and 3 being granted the court be pleased to issue a fresh certificate for confirmation of Grant with the shares of the 2 beneficiaries. 4. The cost of the application to be borne by the Respondent.The application was opposed by the Replying Affidavit of the Respondent sworn on 23rd January 2023. The Trial Magistrate considered the summons and found it did not have merit as the Applicant did not prove that the thumb print on the summons for confirmation was forged. The application was therefore dismissed with no orders as to costs. Vide Memorandum of Appeal dated 23rd February 2024 the Appellant lodged the appeal herein on the following ground: 1. **That the Learned Magistrate erred in in law and fact in concluding that there was no dispute with regard to the issue of the Appellant and the Respondent being entitled to equal share of land No. Nyabasi Busonga/ 139** 2. **That the Learned Magistrate erred in law and fact in finding that the Respondent and the Appellant were entitled to equal share of the property of the deceased.** 3. **That the Learned Trial Magistrate erred in law and fact in finding that the Surveyor had visited the land parcel No. Nyabasi Busonga/ 139and established that the boundaries leading to his filing of the report.** 4. **That the Learned Trial Magistrate erred in law and fact in failing to consider the pleadings and submissions produced by the Appellant.** 5. **That the Learned Trial Magistrate erred in law and fact in finding that that the Appellant had placed his thumbprint on the consent for confirmation of grant.** 6. **That the Learned Trial Magistrate erred in law and fact in dismissing the objection of the Appellant herein.** **REASONS WHEREFORE** the Appellant prays for orders that:- 1. **That the appeal be allowed with costs.** 2. **That the ruling of the Trial Magistrate and consequential orders therefrom be set aside and/ or varied accordingly.** This appeal was heard by way of written submissions. The Appellant’s submissions are dated 4th June 2025 and are to the effect that **Section 78 of the Civil Procedure Act** states the role of a first appellate court is to: ***“…… re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.”*** This was confirmed and re stated by the Court of Appeal in the case of **Peter M. Kariuki v Attorney General [2014] eKLR** where it was held that: ***“We have also, as we are duty bound to do as a first appellate court, to reconsider the evidence adduced before the trial court and revaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence. See NGUI V REPUBLIC, (1984) KLR 729 and SUSAN MUNYI V KESHAR SHIANI, Civil Appeal No. 38 of 2002 (unreported).”*** The Appellant identified issues for determination in the appeal as:- 1. Whether the Learned Trial Magistrate erred in law and fact in concluding that there was no dispute with regard to the issue of the appellant and the respondent being entitled to equal share of land parcel no. NYABASI BUSONGA/139. It is submitted in regard to the above issue that the issue of equal distribution was contested and it was not proper for the Trial Magistrate to indicate that it was not contested.as the Petitioner/ Respondent clearly stated in his Replying Affidavit that the Appellant had encroached on his share and also that the deceased had subdivided the suit parcel before his demise and the Appellant had wished that the boundaries be maintained. Whether the Trial Magistrate erred in law and fact in finding that the Respondent and the Appellant were entitled to equal share of the property of the deceased it was submitted that **Section 29 (a) of the Law of Succession Act**, provides that: ***“For the purposes of this part, „dependent‟ means the wife, or wives, or former wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.”*** Section 42 (a) of the Law of Succession Act, which states that: **“*where an interstate has, during his lifetime by will, paid, given or settled any property to or for the benefit of a child, grandchild or house, that property will be taken into account in determining the share of the net intestate estate finally accruing to the child or grandchild or house*”** **Section 40 of the Law of Succession Act** was also referred to and it was submitted that the same is interpreted by the Court of Appeal in***Scholastica Ndululu Sura v Agnes Nthenya Suva (2019)e-KLR****,* in which that court observed that a blind application of section 40 of the Law of Succession Act, may lead to absurdity and stated that although that section *“provides for a general distribution of the estate of a polygamous deceased person, the court has a discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”* The Appellant’s Counsel submitted that in the instant case the Appellant stated that the they had demarcated boundaries on the ground which the deceased had marked before his death and that it was only proper that the court distribute the properties in accordance to the boundaries on the ground. That in any case it would have been fair if the learned magistrate directed a surveyor to revisit the suit parcel and confirm the acreages to enable him order a distribution which would have been fair to the parties. On whether the Trial Magistrate erred in law and fact in finding that the surveyor had visited the land parcel no. NYABASI BUSONGA/139 and established the boundaries leading to his filing of the report it was submitted that it is clear from the record that there is no surveyors’ report on record and the court erred in its finding that the surveyor visited the suit property when there was no such report on record. Whether the Learned Trial Magistrate erred in law and fact in dismissing the Appellants objection it was submitted that Appellant clearly stated that even though he ranked the same with the Respondent in terms of application for letters of administration, he was never informed that the instant succession proceeding was ongoing neither did he ever sign form 38 consenting to the application of the Respondent neither did he sign the one for confirmation of grant. That the trial court failed to take in to account the said allegations raised by the Appellant given that the application herein was canvassed by way of written submissions. The issue regarding revocation of grant was well raised in the submissions, however the same was never looked in to by the trial magistrate even in his ruling and the Appellant submitted that the application was merited and the same ought to be allowed. On who should pay the costs of the appeal herein the Appellant referred to Section **27** of the Civil Procedure Act which provides that:- ***27 (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 give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers;*** ***Providedappellant 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 direct.*** Further reliance was placed in the case of ***Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant V s Ihururu Dairy Farmers Co-operative Society Ltd*** ***Nyeri High Court Judicial Review application No 6 of 2014 where Mativo J.*** held as follows:- ***"The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”*** The Appellant submitted that having proved this case on a balance of probabilities the appeal herein should be allowed with costs to him. The Respondent’s submissions are dated 26th September 2025 in opposition to the appeal against the ruling and orders of Hon. Obiero SPM, delivered on 25th January, 2024 in Kehancha Succession Cause No. E089 of 2021. The Respondent submitted that the appeal is without merit as the trial magistrate applied the correct principles of law, properly evaluated the evidence, and arrived at a sound conclusion. The Respondent identified issues for determination as:- * 1. Whether the trial court erred in distributing the estate equally between the Appellant and the Respondent; 2. Whether the surveyor's report and filed documents were properly relied upon; 3. Whether the trial court erred in dismissing the Appellant 's objection and application for revocation of grant; 4. Costs. The Respondent submitted that it is not in dispute that the deceased, Kehongo Beneti, left behind only two sons: the Appellant and the Respondent. Section 38 of the Law of Succession Act provides that where an intestate has left children but no surviving spouse, the net estate shall devolve upon the children in equal shares and the trial court correctly applied this statutory provision. The evidence on record demonstrated that both parties were biological sons of the deceased, each entitled to an equal share. The Appellant has not demonstrated any legal or factual basis upon which his entitlement should exceed that of the Respondent. The Respondent also said the law is therefore explicit that children of an intestate must inherit equally, unless compelling reasons justify departure. The Court of Appeal holding in ***Rono v Rono & another [20051 eKLR*** was cited to support the position that equality in inheritance is the guiding principle under section 38 of the Law of Succession Act. That departures from this principle is only justified in the rarest of circumstances where cogent reasons are placed before the court. It was submitted that no such reason was shown by the Appellant. The Respondent Similarly relied on the holding in **Mary Rono v Jane Rono [20051 eKLR,** where the Court emphasized that children of an intestate must be treated equally. The court has no discretion to prefer one child to another unless special circumstances exist. To do otherwise would amount to discrimination. It was therefore submitted that the trial magistrate correctly applied these binding principles and the Appellant failed to provide evidence showing why he should inherit more than the Respondent. The finding of equal distribution was therefore lawful and just. The Respondent also submitted that contrary to the Appellant 's contention, the record is clear that the Summons for Confirmation of Grant was accompanied by a surveyor's report dated 30th June 2022 and the same was considered by the trial magistrate. It was submitted that the Appellant was at liberty to challenge the report by producing his own surveyor's report or cross-examining the maker but he did not. The trial court was therefore entitled to rely on the unchallenged evidence. In ***Kenya Akiba Micro Financing Ltd v Ezekiel Chebii & 14 others [20121 eKLR***, the Court held that uncontroverted evidence remains credible. A party that fails to challenge evidence that is properly before the court cannot later fault the court for relying on it. The trial magistrate was thus correct in relying on the surveyor's report, which remained unchallenged and credible. The Respondent submitted that the Appellant had the opportunity to challenge the report by filing his own expert evidence or cross-examining the maker but failed to do so. That having neglected this, the Appellant cannot now fault the trial court for relying on uncontroverted material properly on record. In regard to the application for revocation of grant it was submitted that the Appellant argued before the trial court that his thumbprint on the consent for confirmation was forged. The trial court dismissed this allegation as unproved. However, as correctly noted by the trial magistrate, under Section 107 of the Evidence Act, the burden of proof lies on he who alleges. Allegations of forgery require strict proof through cogent evidence such as expert testimony. In ***Koinange v Koinange [19861 KLR 23***, the Court of Appeal held: ***"There is one observation which we must make — burden of proof— standard of proof required — allegations of fraud must be strictly proved, although that standard of proof may not be so heavy as to require proof beyond reasonable doubt. Something more than a balance of probabilities is required."*** The Respondent submitted that the Appellant produced no document examiner's report or expert testimony and his claim remained a bare assertion and the trial magistrate rightly rejected it. It was further submitted that Section 76 of the Law of Succession Act provides limited grounds for revocation of grant and the Appellant did not demonstrate any concealment of material facts, fraud, or defect in the proceedings sufficient to warrant revocation. The holding in ***Matheka and Another vs Matheka [20051 2 KLR 455*** was cited where the court of appeal laid down the following guiding principles. "i. A grant may be revoked either by application by an interested party or by the court on its own motion. ii. Even when revocation is by the court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate. " The Respondent submitted that the Appellant did not meet this high threshold and the trial magistrate was therefore justified in dismissing the application. On who should bear the costs of the appeal, it was submitted that Section 27 of the Civil Procedure Act provides that costs follow the event unless the court directs otherwise. The Respondent argued that the appeal is without merit and the same should be dismissed and the Appellant should bear the costs. **Analysis and determination** This being a first appeal, this court is obligated to reconsider and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. In Peter M. Kariuki v Attorney General [2014] eKLR, the Court of Appeal stated: “We have also, as we are duty bound to do as a first appellate court, to reconsider the evidence adduced before the trial court and reevaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence.” This duty was also stated in Selle v Associated Motor Boat Co. Ltd. Having considered the Record of Appeal, the judgment of the trial court and the submissions by the parties, the issues arising for determination are- a). Whether the trial court erred in declining to revoke the grant; b). Whether the learned magistrate erred in finding that the Appellant and Respondent were entitled to equal shares of the estate; c). Whether the learned magistrate erred regarding the surveyor’s report and alleged existing boundaries; and d). Who should bear the costs of the appeal. Regarding the issue whether the trial court erred in declining to revoke the grant the Appellant’s principal complaint before the subordinate court was that he neither participated in the succession proceedings nor appended his thumbprint to the consent for confirmation of grant. He therefore contended that the grant ought to have been revoked. Revocation of grants is governed by Section 76 of the Law of Succession Act which provides that a grant may be revoked where the proceedings to obtain the grant were defective in substance, or where the grant was obtained fraudulently through concealment of material facts or by means of untrue allegations. The burden to satisfy the court that any of the grounds under Section 76 of the Law of Succession Act have been committed lay upon the Appellant to demonstrate the existence of any of the statutory grounds warranting revocation. The allegation made by the Appellant was, in essence, one of fraud and forgery. The law is settled that allegations of fraud must be strictly proved though not beyond reasonable doubt. In the case of Koinange v Koinange [1986] KLR 23, the Court of Appeal held that allegations of fraud require proof that is higher than a mere balance of probabilities. Upon re-evaluating the material placed before the trial court, this court notes that the Appellant did not produce any Document Examiner’s Report, expert evidence, or any other cogent material to establish that the thumbprint appearing on the consent documents was forged. The Appellant merely denied the thumbprint without more. Such bare denial could not discharge the burden imposed by Sections 107 and 109 of the Evidence Act. Further, apart from the allegation regarding the thumbprint, the Appellant did not demonstrate concealment of beneficiaries, concealment of estate assets, or any procedural defect going to the substance of the succession proceedings. The trial court therefore cannot be faulted for finding that the threshold under Section 76 of the Law of Succession Act had not been met. This court is therefore unable to find any error in the learned magistrate’s conclusion declining to revoke the grant. Concerning the issue as to whether the Learned Magistrate erred in finding that the parties were entitled to equal shares of the estate, it is common ground that the deceased was survived by two sons namely the Appellant and the Respondent. The estate property in issue is Land Parcel No. Nyabasi Busonga/139. The Appellant argued that although both parties were beneficiaries, the deceased had allegedly demarcated the portions on the ground prior to his death and therefore the land ought to have been distributed in accordance with the existing occupation and boundaries. The Respondent, on the other hand, maintained that both parties were entitled to equal shares under the Law of Succession Act. Section 38 of the Law of Succession Act provides: **“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall… devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”** Equality among children is therefore the statutory starting point in intestate succession. The Court of Appeal in **Rono v Rono & Another [2005] eKLR** underscored that equal distribution among children is the guiding principle though the court may, in deserving circumstances, take into account special factors in arriving at an equitable distribution. Similarly, in **Scholastica Ndululu Suva v Agnes Nthenya Suva [2019] eKLR,** the Court observed that the court may consider peculiar factual circumstances in ensuring fairness. In the present case however, the Appellant did not place before the trial court sufficient evidence demonstrating that the deceased had conclusively subdivided the land inter vivos or that either beneficiary had previously received a larger portion warranting adjustment under Section 42 of the Law of Succession Act. The assertion that there existed boundaries allegedly fixed by the deceased was not supported by documentary evidence, mutation forms, subdivision records, acreage evidence, or any other independent material capable of displacing the statutory principle of equality. In the absence of such proof, the learned magistrate cannot be faulted for applying Section 38 of the Law of Succession Act and finding that the two sons were entitled to equal shares. This court therefore finds no basis for interfering with that finding. The Appellant also complained that the Learned Magistrate erred regarding the surveyor’s report and existing boundaries. He argued that there was no surveyor’s report on record and that the trial court therefore erred in referring to such report. The Respondent contended that a surveyor’s report dated 30th June 2022 formed part of the record and was not challenged. Having perused the record, it is evident that the subordinate court referred to a surveyor’s report in arriving at its determination. Even assuming that there was ambiguity regarding the report or the extent of its consideration, this court is not persuaded that the same occasioned a miscarriage of justice. The central issue before the trial court was whether sufficient grounds had been laid for revocation of grant. The trial court determined that no fraud or forgery had been proved and that the beneficiaries were entitled to equal shares under the law. The alleged omission or inadequacy concerning the surveyor’s report did not alter the substantive legal position regarding entitlement under Section 38 of the Law of Succession Act. Moreover, the Appellant neither applied to cross-examine the maker of the report nor tendered contrary expert evidence. This court therefore finds that no sufficient basis has been established to warrant interference with the decision of the subordinate court on account of the surveyor’s report. On who should bear the costs of the appeal, Section 27 of the Civil Procedure Act provides that costs follow the cause but the court can also exercise its discretion to award or not award costs depending on the circumstances of each case. Given that this is a succession dispute involving brothers and bearing in mind the nature of family disputes, this court is of the view that each party should bear their own costs of the appeal. The appeal herein is therefore dismissed for lack of merit with no orders as to costs. The ruling of the Trial Magistrate is hereby upheld. Orders accordingly. **DATED, SIGNED AND DELIVERED AT MIGORI, THIS 14TH DAY OF MAY, 2026.** **ANNE ONG’INJO** **JUDGE**