https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10443

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CASE NUMBER: HCCA/E177/2024** **CELINA NYABOKE MOGIKOYO (SUING AS A** **LEGAL REPRESENTATIVE OF THE ESTATE OF** **HENRY JOSEPH MOGIKOYO)………………………….…APPELLANT** **-VERSUS-** **ELIZABETH OKWOYO AND KENNETH KENYANYA** **MOGIKOYO AND 1 OTHERS ……………….………..RESPONDENTS** ***(Being an appeal from the whole of the Ruling of Hon. P C Biwott in PMCC No. E129 of 2024 delivered on 4th October 2024 at Ogembo)*** **JUDGMENT** **Background** 1. The suit in the subordinate court commenced vide a Plaint dated 16th September 2024. The Plaint was filed by the Appellant Celina Nyaboke Mogikoyo suing as a legal representative of the estate of Henry Joseph Mogikoyo, against the 1st Respondent Elizabeth Okwoyo and 2nd Respondent Kenneth Keyanya Mogikoyo. Hema Hospital was sued as interested party (hereinafter the Interested Party). 2. The Appellant alleges that the suit property BASSI/BOITANGARE/2198 belongs to the estate of the late Henry Joseph Mogikoyo, her late husband and is the subject of a pending succession cause Ogembo Magistrate Court Succession Cause No. E014 of 2020, in which the 2nd Respondent has filed objection proceedings. The Appellant, who ordinarily resides in Nairobi stated that she was informed by neighbours that the 2nd Respondent had been indicating an intent to sell part of his claimed half-share of the land. This prompted her to place a restriction on the land. 3. The Appellant further pleads, that the 2nd Respondent on realizing he could not sell the land, allegedly invited several people to lease portions of it, becoming confrontational when the Appellant and other beneficiaries protested any structures being erected. The Appellant indicated that she had always believed James Okwoyo the 1st Respondent’s now-deceased husband to be a mere tenant of the 2nd Respondent. James Okwoyo died on 2nd September 2024. 4. That following the death, the 1st Respondent began holding burial planning meetings at her homestead and announced the burial would take place on the suit property on 20th September 2024. Through administrative inquiries, the Appellant learned the 1st Respondent was claiming that the deceased James Okwoyo had purchased a section of the property from the 2nd Respondent, and that the 1st Respondent intended to bury him there regardless of consent from the Appellant or rightful beneficiaries. 5. It is the Appellant’s position that the purported sale/lease, if any by the 2nd Respondent is a nullity for want of capacity, since the property remains part of an estate under active succession proceedings. The Appellant prayed for: *A declaration that the 2nd Respondent has no proprietary interest in the property; A permanent injunction restraining the internment of James Okwoyo's remains on the suit property; a restraint order against Hema Hospital; An order directing the OCS Igare Police Station to ensure compliance; Costs of body preservation, suit and any other relief the court deems fit.* 6. Similarly, the Appellant filed an Application dated 16th September 2024 seeking interim injunctive orders restraining the 1st Respondent from dealing with the suit property, restraining the Interested party from releasing the remains of the Late James Okwoyo and subsequently preserve and that the OCS Igare Police station to ensure compliance. 7. Upon service of summons dated 17th September 2024, the Respondent entered appearance on 20st September 2024 and filed their respective Replying Affidavits in opposition of the Application. The 2nd Respondent swore her affidavit stating that a portion of the suit property was sold to her deceased husband vide an agreement dated 3rd April 2013 for Kshs, 750,000/=. The trial Court on 17th September 2024 issued interim orders restraining the internment of the Late James Okwoyo on the suit property. The trial court directed the parties to file written submissions and supplementary affidavit if need be. The matter was scheduled for ruling on 4th October 2024. 8. In its ruling the court, the trial court found that the Appellant had been aware of the 1st Respondent and her husband's (James Okwoyo's) purchase and occupation of the portion of land for over 10 years, and must have witnessed the deceased erecting his home on it. She could not therefore claim the 1st Respondent was "a stranger" on the land. The court further noted that both the Appellant and the 2nd Respondent are related and beneficiaries of the late Henry Joseph Mogikoyo. The court found that the 1st Respondent was a purchaser for value from the 2nd Respondent. Since the 2nd Respondent did not challenge the sale, the court held that the Appellant, as an administrator, needed only to regularize the 1st Respondent portion and hand over title through the succession process, and that would serve the ends of justice. The court accepted the Defence's submission that customary law requires a deceased man be buried at his established homestead, and found that James Okwoyo should be interred by the 1st Respondent at his established home on the suit land. 9. The trial court while acknowledging that the 2nd Respondent did not have a capacity to sell the property before succession held that, the act did not invalidate the purchase for lack of value. The court invoked *Article 159 of the Constitution* to reject the Appellant’s technical objection to the sale. The Court further ruled that since the portion sold by the 2nd Respondent did not fall on the Appellant’s share, and her own portion was unaffected, the court found the Appellant stood to lose nothing. Resultantly the application was therefore without merit, and the orders sought could not issue. The Application and the suit were dismissed with costs to the Respondents. **The Appellant’s Case** 1. The Appellant herein being dissatisfied with the entirety of the Trial Court’s ruling and vide a Memorandum of Appeal dated 4th October 2024 sought the following prayers: 1. That the appeal be allowed. 2. That the order dismissing the Plaintiff's Application dated 16th September 2024 and the suit be set aside and in it's place the court do order that the matter in the subordinate court be reinstated and proceed for hearing on merit and grant an injunction as prayed. 3. That costs of the Appeal be granted 2. The Appeal is premised on 7 grounds as follows; 3. *THAT the Learned Trial Magistrate erred in law and fact in failing to appreciate the provisions of the law of succession and sanctity of a deceased estate thereby arriving at an erroneous find.* 4. *THAT the Learned Trial Magistrate erred in law and fact in relying on facts not presented before and disregarding facts and evidence placed before him thereby arriving at a wrong decision.* 5. *THAT the Learned Magistrate erred in law and fact in dismissing the Appellant's suit on allegations that the prayers sought were similar to those sought in the application a fact was not true and may have induced by factors beyond the pleadings before him and without hearing the parties.* 6. *THAT the Learned Trial Magistrate erred in law and fact in making a finding that the estate of a deceased person can be interfered with before the grant of letters of administration have been confirmed by the succession court.* 7. *THAT the Learned Trial Magistrate erred in law and fact when he made a finding that a sale of land agreement which is null and void ab initio can purport to transfer land ownership.* 8. *THAT the Learned Trial Magistrate erred in law and fact in making a finding that the Appellant's knowledge of the Respondent's intermeddling with the deceased estate estopped her from seeking the orders sought.* 9. *THAT the ruling of the Learned Trial Magistrate has occasioned a failure of justice and/or resulted in a gross miscarriage of justice in as much as it has denied the Appellant the opportunity to be heard on merit.* **The Respondent’s Case** 1. The 1st Respondent submitted that a portion of the suit property measuring 50ft by 220ft was purchased by her deceased husband from the 2nd Respondent. That they purchased the property primarily for the purposes of setting up a family home, subsequently developing the property and settling therein. For 11 years they have called it home, this was after they had to sell their ancestral land 2. The 1st Respondent asserted that their occupation has been open and consented by the Appellant and that the application is an afterthought. Further the 2nd Respondent assured them that they will get their rightful portion upon concluding the succession process. The 1st Respondent seeks that the Appeal be dismissed **Analysis & Determination** 1. This Honourable Court, sitting as a first appellate court, is under a duty to reconsider and re-evaluate the evidence on record afresh and to reach its own independent conclusions, bearing in mind only that it did not have the advantage of seeing or hearing the witnesses. This is the settled position **in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.** 2. Having carefully and independently analyzed the record at the trial court and appeal in its entirety, this court, in seeking to arrive at a finding, has framed the following issues for consideration: 3. Whether the learned trial Magistrate properly exercised discretion in determining the interlocutory injunction and determining the suit at that stage; and 4. Whether the appeal is merited and what orders should issue. **Whether the learned trial Magistrate properly exercised discretion in determining the interlocutory injunction and determining the suit at that stage** 1. The Application before the trial court was brought under *Order 40 Rule 1, 2, & 3 of the Civil Procedure Rules, 2010* and *Section 1A & 1B of the Civil Procedure Act* *Sections 45, 47, 82 and 83 of the Law of Succession Act.* The Appellant sought injunctive orders against the burial of the 1st Respondent’s Deceased Husband, further to that order, the Appellant prayed that the body be preserved at Hema Hospital pending determination of the Application. 2. The applicable test is settled in **Giella v Cassman & Co. Ltd. (1973) EA 358**where the courts held***that an applicant seeking interlocutory relief must demonstrate a prima facie case with a probability of success, show irreparable injury and that the balance of convenience should favour the grant of the orders sought.*** 3. The material before the trial record indicates that the land formed part of the estate of a deceased person who died intestate; that the letters of administration had been issued but the grant had not been confirmed; that succession proceedings were pending and that the alleged sale by the 2nd Respondent was disputed. 4. Similarly, the Appellant upon filing an application to confirm the grant vide summons dated 20th October 2022, the 2nd Respondent objected the confirmation for reasons that he was not aware of the succession proceedings and his interest and those of his siblings were not catered. It is the Appellant’s submission that the succession dispute is yet to be concluded. 5. The Appellant submitted that the trial court rendered itself with a finality and ignored the provision of law of succession and sanctity of the deceased estate thereby arriving at an erroneous finding. 6. Some facts of this case are constant; that the suit property is still in the deceased name Henry Joseph Mogikoyo who died on 12th April 1998; It was until 2022 when letters of administration were issued to the Appellant herein. The grant is yet to be confirmed and the 2nd Respondent has opposed to the confirmation. The 1st & 2nd Respondents are allegedly dealing with the property by buying and selling. 7. These facts disclose substantial questions to be tried, evidence to be adduced and both parties afforded a fair hearing. and the court was not required at that stage to determine whether the sale was valid or invalid. It was only required to preserve the subject matter and avoid prejudicing the pending succession proceedings. 8. *Section 45* of the Law of Succession Act provides for protection of the deceased estate and creates the offence of intermeddling. It provides as thus; ***"except so far as expressly authorised by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person."*** Section 55 bars distributing of capital assets before confirmation of grant and *Section 82* provides that personal representatives, subject to limitation of the grant, shall not dispose of immovable assets until the confirmation of the Grant. The Appellant in her application has attached Grant of Letters of Administration she was issued in *Ogembo MCSUCESSION E014 of 2020* on 20th May 2022. As such it is not in dispute that the Appellant is the appointed personal representative. 1. The Learned Trial Magistrate therefore erred by proceeding as though the 1st Respondent’s husband had already acquired a settled proprietary entitlement capable of being regularized through the 2nd Respondent. Whether the 2nd Respondent had any transmissible interest was a substantive succession issue and not a matter to be conclusively resolved on affidavit evidence. 2. This court therefore finds that the Learned Trial Magistrate took into account irrelevant considerations, including the Appellant’s knowledge of the occupation and failed to consider the effect of the pending succession cause and unconfirmed grant. 3. The Learned Trial Magistrate was dealing with an interlocutory application. The parties in the case had not testified and neither had the pleadings been tested by evidence. Yet the court dismissed the entire suit and made consequential orders allowing the interring of the deceased remains in the subject piece of land. This court finds that that was an error as the dismissal of the entire suit at the interlocutory stage denied the Appellant an opportunity to be heard on the merits. **Whether the appeal is merited and what orders should issue.** 1. The court notes that the burial that sought to be restrained has already taken place. The prayers in the plaint sought among others a permanent injunction against the burial of the deceased which has already been overtaken by events. 2. The only surviving issue is prayer number 1 of the Plaint seeking a *declaration that the 2nd Defendant had and has no right and or authority to sale, alienate, and or pass off as a seller any part of the parcel of land BASSI/BOITANGARE/2198 to a third party and any purported sale is null and void ab initio*. 3. This issue remains unresolved and was never heard or determined on its merits. This court then finds it prudent, in the interest of justice and upholding the parties’ right to a fair hearing that the surviving issue needs to be heard and determined upon evidence by the trial court. **Disposition** 1. Accordingly, having carefully considered the record of appeal, the pleadings, the impugned ruling and rival submissions, I find that the appeal is merited. Consequently, this court makes the following orders; 2. The appeal is hereby allowed with costs to the Appellant 3. The ruling and all consequential orders of the subordinate court delivered on the 4th of October 2024 are hereby set aside. 4. The suit is hereby reinstated before a different magistrate for hearing on the surviving issue arising from the pleadings. 5. For avoidance of doubt nothing in this judgment shall be construed as determining the validity or otherwise of the alleged sale by the 2nd Respondent to the 1st Respondent, the beneficial interest of the parties in the estate or any rights claimed by the 1st Respondent. It is so ordered. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 9th DAY OF JULY 2026.** **A.M. OKUTOYI** **JUDGE** **In the Presence of:** **Mr. Omariba for the Appellant** **Mr. Mosota for the Respondent** **Ruth Mokeira-Court Assistant**