https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7683

Oduma v Oduma (Family Appeal E014 of 2025) [2026] KEHC 7683 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7683 (KLR) Republic of Kenya In the High Court at Siaya Family Appeal E014 of 2025 DK Kemei, J June 4, 2026 Being an appeal from the Ruling of the Chief Magistrate’s Court at Siaya by Hon. B. Limo delivered on 5th August 2025 in Succession No. E267 of 2018 Between Michael Adeya Oduma Appellant and Jenipher Akinyi Oduma Respondent Judgment 1.The appeal herein arises from the Ruling of Chief Magistrate’s Court at Siaya by Hon. B. Limo delivered on 5/8/2025 in succession No. E267/2018 wherein he directed the parties to proceed to distribute land parcel East Alego/Ulafu/302 among the six houses as agreed on 17/6/2025 after the summons for confirmation of grant dated 12/6/2025 were confirmed 2.The Appellants was aggrieved by the aforesaid judgment and filed a Memorandum of Appeal dated 15/8/2025 wherein he raised the following grounds:i.That the learned magistrate erred in law and fact by directing the petitioners to proceed with subdivision of the only remaining parcel of land no.LR NO.east Alego/Ulafu/302 registered in the name of the deceased without first determining the Appellant’s allegations of material non-disclosure of other properties already allocated to other houses.ii)That the learned magistrate erred in law by failing to accord the Appellant the right to be heard on the issues raised concerning the fairness and equity of the distribution, contrary to Article 50(1) of the Constitution and section 47 of the Law of Succession Act.iii)That the learned magistrate erred in law and fact by ignoring the requirement under section 71(2) of the Law of Succession Act that the court must be satisfied that all assets and beneficiaries have been disclosed before confirming or varying a grant.iv)That the learned magistrate erred in law by issuing final and executory directions without giving the Appellant reasonable time to file the intended application despite a formal request, thereby occasioning prejudice.vi)That the learned magistrate erred in law by disregarding the principles of equity and fairness under sections 26, 27, and 28 of the Law of Succession Act, leading to a distribution that unjustly enriches certain beneficiaries at the expense of the Appellant’s house and other beneficiaries.vii)That the learned magistrate erred by failing to consider that the distribution as ordered would defeat the interests of justice and cause irreparable loss to the Appellant and other beneficiaries.The Appellant therefore prays that:a.The Appeal be and is hereby allowed.b.The Ruling/directions of the Lower Court in Succession No. E267 of 2018 delivered on 5th August 2025 be set aside.c.This Honourable Court do make such further orders as are just to ensure a fair and equitable distribution of the estate, taking into account all properties and prior allocations.d.The costs of the Appeal be granted to the Appellant. 3.This being the first appellate Court, its duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and/or arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified and to make due allowance for the same. See Selle vs associated Motor Boat Co. Ltd (1968) E. A 123. 4.A perusal of the record of appeal shows that the matter has had a chequered history. It is noted that the Respondent herein and another had filed a summons for revocation of grant against the Appellant herein vide their application dated 6/4/2022 which was later heard before Hon L. Simiyu via viva voce evidence leading to the ruling dated 31/7/2024 wherein she dismissed the claim by the Respondent’s Co-Applicant as it was based on customary trust and further issued a grant in favour of the Appellant and the Respondent herein. It is also noted that the parties herein later filed summons for confirmation of grant dated 12/6/2025 which was placed before Hon Limo (PM) on 17/6/2025 wherein both the Appellant and Respondent herein were present as well as other beneficiaries and their respective Advocates and that it was mutually agreed that the proposed distribution of the only asset namely East Alego/Ulafu/302 be distributed as per the agreed schedule. It was then that the learned trial magistrate directed that a Government surveyor be involved in the exercise of sub-division of the property to the beneficiaries. That on 5/8/2025 the learned trial magistrate granted the parties more time to proceed with the distribution exercise as agreed on 17/6/2025. It was from this juncture that the Appellant moved to this court on appeal and contemporaneously filed an application for stay of execution of those orders. 5.The appeal was canvassed by way of written submissions. 6.It was submitted that the Appellant, who was the petitioner in the Lower Court, instituted succession proceedings and involved all beneficiaries from all the deceased’s six houses. Prior to his demise, the deceased had allocated land to certain houses, and the suit parcel East Alego/Ulafu/302 was intended for the remaining houses that had not benefitted from lifetime allocation namely 1st and 6th houses. 7.It was contended by the Appellant that the trial court later on 17/9/2025 allowed the Respondent’s application dated 12/8/2025 and thus he is opposed to the same on grounds inter alia; that the learned magistrate erred in law and fact by issuing final and executory orders without affording the Appellant the right to be heard, contrary to the rules of natural justice; that the Lower Court failed to consider material facts, including that several houses had already been given parcels during the deceased’s lifetime; that the Court misapplied Section 40 of the Law of Succession Act by ordering equal division among all children irrespective of prior lifetime allocations; that the Court erred by appointing the Respondent and another brother as administrators without considering the Appellant’s priority as firstborn of the 1st house and without hearing his objection. 8.Learned counsel for the Appellant raised two issues fro determination namely, whether right to a fair hearing of the Appellant was breached and whether lifetime gifts should be considered during intestate provision and whether non-disclosure of lifetime allocations is unjust. 9.The Appellant submits that the Lower Court violated Article 50 of the Constitution of Kenya 2010 and the principle of audi alteram partem by issuing final orders without giving him an opportunity to respond to the Respondent’s application dated 12/8/2025. It is submitted that had the Appellant been heard, the Appellant would have demonstrated that: Certain houses had already received land from the deceased during his lifetime; and the remaining parcel East Alego/Ulafu/302 was intended for the houses that had not benefitted as per the wishes of the deceased. 10.Reliance was placed in Matoi v Kimau & another (Environment & Land Case E014 of 2024 [2025] KEELC 712 (KLR) where the High Court set aside a previous ruling because the applicants were not served with the application to reinstate a suit and thus not given an opportunity to be heard, reinforcing the core principle of natural justice. 11.It was also submitted that it is trite law that each party deserves a right to be heard before a determination is made to avoid violation of natural justice. In this case the Respondent did not serve the Appellant with the Application determined by the lower court dated 12th August 2025. That the Appellant only learnt of the ex-parte Orders granted to the Respondent to proceed and subdivide the land when he was served by the Respondent with the Order dated 5th August 2025 to appear on the site. That the Respondent’s application concealed material facts on the issue of previous provisions during the deceased’s lifetime necessary for just determination. Reliance was placed in the case of Adome v Ogutu (Succession Appeal 24 of 2021) eKLR where the court emphasized that administrators cannot be appointed where material facts are concealed and that parties must be heard before such orders issue. That the issue of subdivision of the deceased’s assets and change of administrators are very crucial which needed a response and a fair hearing from both parties. That the Courts should lean towards ensuring disputes are determined on their merits, and procedural technicalities should not be a bar to justice if a fair hearing can correct an injustice and therefore, this Court should set aside the ruling and allow the Appellant to be heard. 12.As regards the second issue on the lifetime gifts and non-disclosure it was submitted that the lower Court erred in failing to consider that lifetime gifts constitute prior provision under Section 42 of the Law of Succession Act and must be accounted for during distribution. That by failing to require disclosure of lifetime allocations, the Court created unjust enrichment, allowing some beneficiaries to receive double portions. It was submitted that the lower Court misapplied Section 40 of the Law of Succession Act which requires distribution among houses based on number of children plus the surviving spouse. Reliance was placed in the case of Maina v Kipruto (Family Appeal E004 of 2023) eKLR where the court held that distribution under Section 40 of the Law of Succession Act must consider factual circumstances and cannot be mechanical. 13.It was also submitted that the lower Court ignored these principles and instead directed equal distribution to all children despite clear evidence that some houses had been fully provided for during the lifetime of the deceased. Further, that under Section 66 of the Law of Succession Act, the Court must consider priority in appointment of administrators. That the Appellant, being firstborn of the first house, had priority and had already petitioned for the grant and was already administering the estate of the deceased well. That the appointment of the Respondent and her brother without hearing the Appellant was procedurally improper, discriminatory, and contrary to statutory hierarchy. 14.It was finally submitted that the appeal should be allowed and the ruling of the trial court dated 17/9/2025 be set aside and fresh distribution be made taking into account lifetime gifts made to certain houses and finally the Appellant be retained as administrator, or alternatively, neutral administrators be appointed and that costs of the appeal be awarded. 15.The Respondent filed submissions dated 27/1/2026. She submitted that the appellant did not disclose the alleged assets said to have been gifted by the decased to certain house during his lifetime. It was also submitted that the Appellant had been present in court through the process but did not raise any issues at the earliest opportunity. That the trial court gave the Appellant and beneficiaries time to go and reach a consent but he had refused to cooperate as he was out to frustrate the process of the distribution of the estate of the deceased. The Respondent urged the court to dismiss the appeal with costs. 16.I have given due consideration to the record of appeal and the submissions tendered. The issue for determination is whether the appeal has merit. 17.First things first. The appeal is predicated upon the Memorandum of Appeal dated 15/8/2025 and hence the dispute should revolve around the same. The said Memorandum of Appeal had been filed in response to the orders of the trial magistrate dated 5/8/2025. Indeed, the Memorandum of Appeal proceeded to raise the grounds of appeal regarding the impugned orders of the trial magistrate dated 5/8/2025. A perusal of the Appellant’s submissions reveals that the same are in respect of an order dated 17/9/2025 yet there is no appeal that has been lodged regarding such orders. The Appellant had approached this court over orders dated 5/8/2025 and not 17/9/2025. Hence, the submissions by the Appellant appear to be off tangent. The Appellant literally abandoned his appeal and went ahead to submit on a matter that is yet to come on appeal. It is trite that parties are bound by their pleadings and that they are not allowed to venture into matters not pleaded in the pleadings. It is clear therefore that the Appellant’s submissions on the appeal relates to another issue that has not been placed before this court. 18.Even assuming that the appeal herein relates to the issues raised in the Memorandum of Appeal dated 15/8/2025, it is my considered view that the appeal would still come a cropper. The record of the lower court of 17/6/2025 shows that the Appellant and Respondent together with the beneficiaries were present and that they informed the court that they had all agreed to have the land divided between the six houses. In fact the Appellant who was the 1st Petitioner informed the court that he was in agreement. The learned trial magistrate ordered as follows:‘’This matter is for confirmation today. Beneficiaries have appeared before me. From submissions of the administrators and respondents. The land in question be divided in the six (60 houses as made out in the affidavit dated 12.6.2025. After subdivision each family will agree among themselves on how to divide their respective portions. The Government surveyor to be served as representatives of each house. In the end, the judgement dated 31.7.2024 is confirmed in the given terms. Mention on 5.8,2025 for compliance.’’ 19.When the matter came up on 5/8/2025, the 2nd Petitioner (Respondent herein) while the 1st Petitioner (Appellant herein) was absent, The Respondent sought for more time to carry oit the subdivision and transfer of land to the beneficiaries. The trial court granted the request as agreed on 17/6/2025. Indeed, the previous summons for confirmation of grant as per the supporting affidavit indicated the schedule of distribution of the estate between the six houses of the deceased. The Appellant had appeared in court and agreed to the said distribution but turned around and disowned it. I find that the Appellant cannot be allowed to resile what had been agreed upon by the family including himself as confirmed by the proceedings of 17/6/2025. Indeed, the proposed distribution was quite fair as all the houses were to get an equal share of the estate. The Appellant did not present credible evidence regarding the issue of other gifts inter vivos made by the deceased which he ought to have availed it in opposition to the proposed schedule of distribution. It is ironical that the Appellant consented to the distribution and then turns around and disowns it. It is apparent that the Appellant is out to frustrate the finalization of the estate. 20.In view of the foregoing observations, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed. As parties are members of one family, I order each party to bear their own costs of the appeal. DATED AND DELIVERED AT SIAYA THIS 4TH DAY OF JUNE 2026D.KEMEIJUDGEIn the presence of :Ms. Onono.......................................for AppellantN/A Jeniffer Akinyi....................................for RespondentMs. Maureen ...........................Court Assistant