https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12512

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION CAUSE NO. 805 OF 2014** **IN THE MATTER OF THE ESTATE OF KHAYUMBI MUSEVE (DECEASED)** **BETWEEN** **NORAH FLORENCE MUTSOTSO ………..……………… PETITIONER/1ST RESPONDENT** **VERSUS** **ZACHARIA MUTSOTSO …………….………………..…. OBJECTOR/2ND RESPONDENT** **COLLINS KIZITO MATEMBA LUVEGA ..………………INTERESTED PARTY/APPLICANT** **RULING** 1. By an application dated 4/2/2025, the Interested Party seeks the following orders:- 1. *Spent.* 2. *Spent.* 3. *THAT pending the hearing and determination of this application inter-partes, there be an order of stay of execution of the orders of this Honourable Court issued on 25th January, 2024 and given on 17th November, 2023.* 4. *THAT the orders issued by this Honourable Court on 25th January, 2024 and given on 17th November, 2023 be set aside and/or reviewed.* 5. *THAT costs of this application be provided for.* 2. The application is supported by an affidavit sworn by the Applicant who avers that he is the registered proprietor of the parcel of land known as L.R. No. ISUKHA/MUGOMARI/416 having purchased it from the Petitioner vide a sale agreement dated 27/2/2017 attached to the Affidavit. The Applicant further avers that on 17/11/2023, this Honourable Court issued orders that affected his interest in the land without giving him a chance to participate and that this Court lacks jurisdiction to issue the orders that it did. Furthermore, the Applicant deponed that he had obtained eviction orders in Kakamega MC L&E No. 50 of 2020, which orders cannot be executed concurrently with this Court’s orders. According to him, he never participated in any mediation proceedings having not been invited to the same, and therefore the Petitioner was guilty of material non-disclosure. 3. The Petitioner, in response to the application, filed an affidavit sworn on 11/2/2025. She depones that she is the sole and undisputed heir of the deceased and regularly and lawfully undertook succession proceedings which resulted in lawful transmission of the deceased's assets comprised in L.R. No. ISUKHA/MUGOMARI/416 to her, subsequent to which she transferred the whole parcel of land to the Applicant who then took possession of the same. 4. It is the Petitioner’s averment that the Objector/2nd Respondent to the application and who is the brother of the deceased, is the one who sought revocation of Grant, which she maintains was unmerited. She depones that the dispute between her and the 2nd Respondent was referred to mediation without the Applicant being informed. She further avers that she is a stranger to the case before the Chief Magistrate’s Court and denies that she has taken any action in the proceedings that amount to an abuse of the court process on account of non-disclosure of any material facts. 5. The 2nd Respondent opposed the application and filed an affidavit sworn on 18/3/2025. He avers that the orders sought are not available to the Applicant at this stage and that the interest that the Applicant has in the suit land cannot be adjudicated upon by this court as the court is functus officio, having already determined ownership of the estate property earlier. The 2nd Respondent further avers that the Applicant is not a beneficiary to the estate and that this court has no jurisdiction to grant the orders. 6. The application was canvassed through written submissions. 7. The background to the application is that the Petitioner/1st Respondent is a granddaughter of Khayumbi Museve, the deceased herein, and that the deceased was the registered owner of L.R. No. ISUKHA/MUGOMARI/416 comprising 0.7 hectares. On 23/9/2014, the Petitioner lodged a petition for Grant of Letters of Administration Intestate in which she named herself as the sole surviving dependant of the deceased. Subsequently, she secured a Certificate of Confirmation of Grant of Letters of Administration dated 9/3/2016. From the Applicant's affidavit dated 4/2/2015, the Petitioner sold the entire parcel of land to the Applicant at a consideration of Ksh. 870,000/= and as at the time of filing the application now under consideration, the Applicant had a certificate of title to the suit property. The Court notes that the Applicant did not file a Certificate of Official Search in proof of his assertion that he is the registered owner. However, a perusal of the file yielded a certified true copy of the title that was earlier filed by the Petitioner as an annexure to her affidavit dated 12/11/2018 and filed on 14/11/2018, which confirms the Applicant’s assertion. 8. After the 1st Respondent had transferred the property to the Applicant, the 2nd Respondent filed Summons for Revocation of Grant on account of fraudulent misrepresentation by the 1st Respondent that she was the only survivor of the deceased when in fact the Objector, who is the deceased’s son, was still alive. 9. On 11/12/2019, the 1st and 2nd Respondents signed a Mediation Settlement Agreement in which they agreed inter alia that the transfer of the suit land to the Applicant be revoked and the consideration be refunded to him. It was further agreed that the 2nd Respondent’s family would be the ones to refund the purchase price. The Mediation Settlement Agreement was adopted as an order of the court, and it is the said order that gave rise to the present application. 10. The Applicant submits that having been successfully registered as sole proprietor to the suit land, his title is not subject to challenge except:- 11. On the ground of fraud, misrepresentation to which the person is proved to be a party; or 12. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 13. He contends that the Respondents could not unilaterally enter into a consent order vide a mediation process whose effect was to rescind his sale agreement and revoke his title without involving him when, in any event, he had a valid judgement in Kakamega MC L&E No. 5 of 2020 against the 2nd Respondent who had been declared a trespasser. 14. On his part, the Objector submits that the application should have been filed in the Environment and Land Court as this Court lacks jurisdiction to determine the dispute. Further, he asserts that pursuant to Rule 63 of the Probate and Administration Rules, Order 1 and Order 22 of the Civil Procedure Rules that are relied upon by the Applicant are not applicable in succession matters. He also asserts that the Applicant, who is not a member of their family, should not be made a party to the succession cause. 15. Vide her written submissions dated 27/1/2026, the 1st Respondent submits that the order that emanated from the Mediation Settlement Agreement was proper as the mediation was mandated by the court and the order was procedurally issued. She further submits that despite the Applicant being aware of the proceedings that led to the order, he did not join the matter on time and equity does not aid the indolent is applicable as the Applicant slept on his rights. Finally, she submits that there is no reason for the order to be set aside and what remains is for the Applicant to pursue the 2nd Respondent for a refund. 16. Upon carefully considering the parties’ written submissions, the issues that arise are:- 17. *Whether this court has jurisdiction to hear the application.* 18. *Whether the Applicant slept on his rights.* 19. *Whether the orders of review should issue.* 20. On the issue of jurisdiction, it is common ground that the dispute revolves around the Respondents’ unilateral decision to revoke the Applicant’s title to property which he purchased from the 1st Respondent after she had secured a Certificate of Confirmation of Grant in her favour. The decision to revoke the title, which was made subsequent to mediation proceedings, was made without involving the Applicant. In the premises, the Applicant was denied an opportunity to be heard before the adverse order was made. The effect of the Mediation Settlement Agreement was that the 1st Respondent was in breach of the agreement of sale of the land between her and the Applicant. 21. The purpose of the application for review is to enable the Applicant to participate in the objection proceedings. 22. The Applicant is not a liability to the estate but a purchaser from a beneficiary whose claim that she is a sole beneficiary was subsequently challenged by the 2nd Respondent. 23. It is well settled that the jurisdiction of the High Court in succession matters is limited. The duty of the Succession Court is to identify the dependants of a deceased person, the assets and liabilities of the estate, and to determine the ultimate beneficiaries and their respective shares. Where a dispute arises between a third party and the dependants, the Succession Court lacks jurisdiction to hear the dispute. 24. By dint of Rule 41 (3) of the Probate and Administration Rules, any dispute regarding a share in the estate of a deceased person that is made by a third party claiming a beneficial interest should be heard outside the confines of the Succession Court. Rule 41 (3) provides:- ***“(3) Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.”*** 1. In **Re Estate of Alice Mumbua Mutua (deceased) [2017] KEHC 8289 (KLR)**, Musyoka J., while considering when a case can be heard by a Succession Court or by other courts, pronounced himself as follows:- ***“29. Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate, or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus officio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.”*** 1. By filing Summons for Revocation of Grant, the 2nd Respondent was challenging the authority of the 1st Respondent to transfer a valid title to the Applicant. The 1st Respondent took the easier route and, without due notice to the Applicant, acceded to the demand for revocation of the title. 2. There is no doubt that the Applicant is aggrieved. But his cause of action lies against the 1st Respondent as the primary defendant and not against the estate of the deceased. The objection proceedings related to the question as to who were the rightful beneficiaries of the estate of the deceased. Pursuant to the Law of Succession Act, the court had jurisdiction to determine the said issue. However, the court does not have the jurisdiction to determine the legality of the agreement of sale between the 1st Respondent and the Applicant despite the fact that the 1st Respondent acquired title through transmission. 3. Ultimately, the Applicant’s claim lies in the Environment and Land Court as he seeks orders declaring that he acquired a good title from the 1st Respondent subsequent to her acquisition of the same through transmission. The Succession Court lacks jurisdiction to hear and determine his claim, which would entail an inquiry into the legality of the agreement of sale, and the propriety of the revocation of the Applicant’s title. Consequently, enjoining the Applicant as a party to this cause would be futile, as it would serve no purpose. Further, the prayer for review is untenable, as the Applicant is neither a survivor of the deceased nor a liability to his estate. Since this court lacks jurisdiction, to allow the application for review would be to act against the established principle that where a court finds that it lacks jurisdiction, it should down its tools immediately. See **Owners of Caltex Motor Vessel “Lillian S” v. Caltex Oil Kenya Ltd [1989] KECA 48 (KLR)**. 4. The Applicant is at liberty to file suit in the appropriate forum and to lodge a caveat to safeguard his interest in the property during the pendency of the proceedings. 5. From the foregoing analysis, I find the application unmeritorious. Since the Respondents entered into the consent that adversely affected the Applicant’s title without giving him the opportunity to be heard, I hereby dismiss the application with no order as to costs as a party should not be allowed to benefit from their manifestly wrongful act. Dated, signed and delivered at Kakamega this 31st day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Mr. Maina for the Petitioner/1st Respondent Ms. Ihachi holding brief for Mr. Luchivya for the Objector/2nd Respondent Ms. Cherono holding brief for Mr. Nandwa for the Interested Party/Applicant Court Assistant: Polycap