https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10367

Muthoka & another v Muthoka & another (Family Appeal E006 of 2024) [2026] KEHC 10367 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 10367 (KLR) Republic of Kenya In the High Court at Makueni Family Appeal E006 of 2024 RA Oganyo, J July 3, 2026 Between Joel Mwololo Muthoka 1st Appellant Eunice Mbeneka Ntheketha 2nd Appellant and Grace Mueni Muthoka 1st Respondent James Mutio Muthoka 2nd Respondent Judgment 1.This appeal arises form the judgement of the Chief magistrate Court at Makueni Succession Cause No.05 of 2015 in the Matter of the Estate of Muthoka Mutio (Deceased) delivered on 13/06/2024. 2.Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated 11/07/2024 with the following listed grounds;a.The Learned trial Magistrate erred in law and in fact by failing to consider the applicable law and to evaluate the evidence tendered in this matter judiciously before arriving at his judgement and/or failed to do justice before him.b.The impugned Judgement offends the provisions of Order 21, rule 4 of the Civil Procedure Rules, 2010 on the Contents of judgment in defended suits, is opaque and utter contradictory, therefore an injustice.c.The Learned trial Magistrate erred in law and in fact by failing to consider the history or trajectory and/or progress of the matter from Petition and Objection of Grant to the hearing of the matter plus various directives and/or orders of the court notably the Court Order of 12.07.2016 of Injunction against the Petitioner therein and 1st Respondent herein; Grace Mueni Muthoka restraining her, her agents, servants, employees or whosoever from dealing with the deceased’s immovable properties, the Court Order of 06.02.2019 directing the Petitioner therein and 1st Respondent herein; Grace Mueni Muthoka to render a full and accurate account of the cash from rent income from the developed plots being; PLOT 1B WOTE TOWN and PLOT WOTE KUNDA KINDU, from 2013, within 45 days of the date of the ruling of the court and the court’s directions of 03.11.2021 on Valuation of the deceased’s properties/assets.d.The Learned trial Magistrate erred in law and in fact by failing to consider all the deceased’s Assets including cash from rent income from the developed plots being; PLOT 1B WOTE TOWN and PLOT WOTE KUNDA KINDU, from 2013 in terms of the Court Order of 06.02.2019, Liabilities, Settlements for Household 1 and 2, Sharing of Property and Gifts by the Deceased to children before his death.e.The Learned trial Magistrate erred in law and in fact by failing to consider and pronounce himself on the open Contempt of Court on the part of the Respondents herein for the deliberate failure to comply with the Court Orders of 12.07.2016 and 06.02.2019.f.The Learned trial magistrate erred in law and in fact by failing to judiciously exercise his discretion on the matter before him thereby going against the overriding principle of civil litigation. That all in all, the Learned trial magistrate did not afford the Appellants a Fair Hearing against the tenets of Articles 27 (1), 50 (1) & 159 (2)(d) of the Constitution of Kenya 2010, Section 11 of the Fair Administrative Actions Act, 2015 the Overriding Objective of the Court and substantive Justice. 3.The Appellants prayed for the appeal to be allowed and for the trial court’s judgement delivered on 13/06/2024 to be set aside, varied or be substituted with the finding of this court. 4.The present application was canvassed by way of written submissions. Appellants submission 5.In their written submissions dated 22/05/2026, the Appellants argue that the trial court's Judgment delivered on 13th June 2024, confirming the Grant of Letters of Administration in Makueni Succession Cause No. 50 of 2015, was erroneous and contrary to the evidence on record. 6.On whether the trial court properly evaluated the evidence before arriving at the impugned Judgment, the Appellants submitted that judgments in defended suits must contain a concise statement of the case, points for determination, the decision on each issue, and reasons for such decisions. They argued that the trial court erroneously presumed occupation of land without cogent evidence. 7.On whether the trial court erred by failing to consider existing court orders, the deceased's liabilities, and cash from rent income, the Appellants submitted that the court orders of 12th July 2016, 6th February 2019, and the direction of 3rd November 2021 were all disregarded. They argued that cash from rent income from 2013 constitutes an asset of the estate which the trial court failed to address, and the deceased's liabilities, settlements and gifts made before his death were similarly ignored. They submitted that under Section 10(1), (3) & (6) of the Magistrates' Courts Act 2015, Section 47 of the Law of Succession Act, and Rules 44 and 49 of the Probate and Administration Rules, the subordinate court had jurisdiction to issue decrees and orders to address the deliberate failure by the Respondents to comply with court orders. They further contended that no beneficiary or creditor filed a Protest against the Appellants' proposed mode of distribution, and the proposed distribution caters for those who have established homesteads without evicting anyone. 8.On whether the Appellants were denied a fair hearing, they submitted that the right to a fair hearing is sacrosanct and cannot be limited unless by operation of law in the clearest of circumstances, relying on Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR. Respondents’ submissions 9.In their written submissions dated 4/06/2026, the Respondents argue that the trial court properly considered the competing modes of distribution, the composition of the two houses, actual occupation and user of estate assets, and the overriding duty to bring administration to a lawful, practical and equitable close. 10.On whether the Appellants have met the threshold for appellate interference, the Respondents submitted that a first appellate court must reconsider the evidence and draw its own conclusions while bearing in mind that it did not see or hear the witnesses, relying on Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424. They argued that appellate interference is only justified where findings are based on no evidence, misapprehension of evidence, or demonstrably wrong principles, as established in Jabane v Olenja [1986] KLR 661 and Kiruga v Kiruga [1988] KLR 348. They contended that the Appellants merely quarrel with the weight attached to evidence of occupation and practicality, which is insufficient grounds for interference. Furthermore, they submitted that a confirmation court is not bound to adopt the most mathematically attractive proposal and is entitled to accept the proposal that best preserves family occupation, minimizes disruption, and accounts for household equity. 11.On Order 21 Rule 4 of the Civil Procedure Rules, the Respondents submitted that the argument is misplaced for two reasons: first, succession proceedings are governed by the Law of Succession Act and the Probate and Administration Rules, and Rule 63 does not import Order 21 into succession proceedings; secondly, even if applied as a guide, the alleged defect would not invalidate the judgment as the Appellants have been able to identify what the court decided, what mode was preferred, and why they disagree, demonstrating no real uncertainty in the decree. 12.On the valuation, rent income, liabilities, settlements and gifts, the Respondents submitted that the court's urging parties to consider valuation on 3rd November 2021 was a suggestion, not a mandatory order or statutory condition precedent to confirmation. They argued that the Appellants, having prosecuted the summons for confirmation and invited the court to distribute the estate, cannot approbate and reprobate by failing to produce a valuation themselves and then blaming the court. Regarding rent income, they submitted that this is an accounting issue capable of being dealt with under the continuing jurisdiction of the probate court, not a basis for setting aside the distribution of capital assets. 13.On whether the Appellants were denied a fair hearing, the Respondents submitted that the Appellants had notice, opportunity to present evidence, opportunity to challenge the opposite case, and a decision by a competent court. They were appointed administrators by consent, filed a summons for confirmation, filed witness statements, testified and were cross-examined. The fact that the court disagreed with them is not denial of a fair hearing. They further submitted that Section 11 of the Fair Administrative Action Act is inapt as the impugned decision is a judicial judgment, not an administrative action, and Article 159(2)(d) does not authorize an appellate court to ignore evidence or disregard statutory succession principles. Analysis and determination 14.This is the first appeal. My duty as the 1st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 15.In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:“An appeal to this court from a trial by the High Court is by way of 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 itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 16.The record before me shows that this succession cause has been in court for close to eleven years and the deceased died fourteen years ago. Both households have, at different times, been petitioner and objector, and the administration has passed through four different judicial officers. I bear this history in mind, together with the overriding objective of just, expeditious and proportionate resolution of disputes under Sections 1A and 1B of the Civil Procedure Act, which applies to these proceedings by virtue of Article 159(2)(d) of the Constitution of Kenya, 2010. 17.In my view, the issues for determination in this matter are:a.Whether the trial court properly evaluated the evidence and applied the correct legal principles in its judgment.b.Whether the Appellants were denied a fair hearing. 18.The Appellants argue that the trial court ignored crucial evidence, misapplied the law, and delivered a judgment that offends Order 21 Rule 4 of the Civil Procedure Rules due to its brevity and alleged opacity. 19.The core of the dispute revolves around the distribution of a polygamous estate, invoking Section 40 of the Law of Succession Act which provides that:“40.Where intestate was polygamous(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.(2)The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.” 20.On the interpretation of section 40 of the Law of Succession Act, the High Court in Koech & another v Chemutai & 2 others (Civil Appeal 438 of 2019) [2022] KECA 1309 (KLR) (2 December 2022) (Judgment) stated that:“The 2010 Constitution, the Law of Succession and judicial precedent on the subject matter provide clear guidelines towards the interpretation of section 40 of the Law of Succession Act: The first principle is equality and non- discrimination. The right to equal treatment requires that all persons be treated equally before the law, and without discrimination. It guarantees that those in equal circumstances are dealt with equally in law and practice.” [emphasis added] 21.The Appellants' main contention is that the trial court presumed occupation of land without cogent evidence such as a survey or valuation report, and that its use of the phrase “it would appear” shows that it was not evaluating the evidence with the necessary rigour. 22.Having gone through the record of appeal, I do not find that the trial court's finding on occupation lacked an evidentiary basis. Joel Mwololo Muthoka, the 1st Appellant, testifying as PW1 for the first household. He admitted on cross-examination on 3rd November 2021 that the third and fourth Administrators, the Respondents' household, had established their home on Land No. Makueni/Unoa/394, that the family of the late Benjamin Nzuki Muthoka continued to occupy the same land, that his own home was at Konza ranching, and that the first household had established its home at Kivani. Grace Mueni Muthoka, the 1st Respondent herein, testified as DW1, and stated that she resided on Land No. 394, that no other person had built on her portion, and that there was no space left for further occupation on it. James Mutio Muthoka, testified on 23rd November 2023, gave evidence in the same vein, describing which parcels each household occupied and the extent of that occupation. 23.This is direct oral evidence, given on oath and tested through cross-examination, from witnesses drawn from both households, including the 1st Appellant himself. It was open to the trial court to rely on it. 24.The argument that the judgment is opaque and contradictory is not borne out by the record. I find that the trial court considered the evidence and applied the correct legal principles in arriving at its decision. 25.As for the phrase “it would appear”, I do not consider this, on its own, to demonstrate a failure to evaluate the evidence. Measured language of this kind is commonly used by judicial officers in weighing competing accounts, and what matters is whether the ultimate finding is supported by the record. 26.I note, further, that the impugned Judgment refers to the mode of distribution it adopted as that “by the 2nd and 4th Administrators.” On the record, the 1st and 2nd Administrators are the Appellants, Joel Mwololo Muthoka and Eunice Mbeneka Ntheketha, while the 3rd and 4th Administrators are the Respondents, Grace Mueni Muthoka and James Mutio Muthoka. The schedule the trial court in fact adopted, dated 7th January 2021, is the one filed by the 3rd and 4th Administrators. This is a clerical slip, not a substantive finding that some other, non-existent schedule was preferred. It does not create real uncertainty as to what was decided, since the schedule adopted is clearly identified by its date, but it should nonetheless be corrected, and I do so in the orders below. 27.This ground of appeal therefore fails 28.On the second issue, the Appellants contend they were denied a fair hearing against the tenets of Article 50(1) of the Constitution and Section 11 of the Fair Administrative Action Act, 2015. 29.On this issue, the record clearly shows that the Appellants were appointed administrators by consent, filed their summons for confirmation, called a witness, the 1st Appellant, who testified and was cross-examined, and filed submissions. The fact that the court ultimately disagreed with their proposal does not amount to a denial of a fair hearing. The Appellants had ample opportunity to present their case, and they did so. I therefore find this argument to be without merit. Disposition 30.Taking the above into consideration, I find that the trial court correctly evaluated the evidence and applied the proper legal principles, and the Appellants were not denied a fair hearing. The appeal against the confirmation of the grant and the mode of distribution fails. 31.Consequently, I make the following orders;a.The appeal is hereby dismissed;b.The Judgment and Certificate of Confirmation of Grant issued in Makueni Chief Magistrate’s Court Succession Cause No. 50 of 2015 on 13th June, 2024 are hereby upheld;c.Pursuant to Section 83 of the Law of Succession Act, all Administrators are hereby directed to file a comprehensive and audited account of all rent income collected from the commercial plots (Plot 1B Wote Town and Plot Wote Kunda Kindu) from 2013 to the date of confirmation, within sixty (60) days of the date of this judgment.d.Each party to bear their own costs for this appeal.It is so ordered.Right of appeal 30 days. DATED, SIGNED AND DELIVERED VIA TEAMS AT NAIROBI THIS 3RD DAY OF JULY, 2026.………………………..Hon. R. A. Oganyo, MrsJudge.In the presence of: -Court Assistant…... E, SanaMr. Muthui for the RespondentsMr. Kiluva for the Appellants-I pray for a mention date in the Makueni High court after 60 days.Mr. Muthui- No objection.Order.Mention on 14th October, 2026 before the Judge in Makueni High court.