Nkoroi & another v Mwebia (Family Appeal E021 of 2024) [2026] KEHC 7666 (KLR) (2 June 2026) (Judgment)

Nkoroi & another v Mwebia (Family Appeal E021 of 2024) [2026] KEHC 7666 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7666 (KLR) Republic of Kenya In the High Court at Meru Family Appeal E021 of 2024 HM Nyaga, J June 2, 2026 Between Loise Mwari Nkoroi 1st Appellant Lucy Gakii Nkoroi 2nd Appellant and Margaret Kathure Mwebia Respondent Judgment Background: 1.The deceased herein is said to have died on 31st June 2006 (sic) according to the death certificate filed in the lower court on 23rd January 2023. Margaret Kathure Mwebia (the respondent) and Patrick Koome Kaburu petitioned the Principal Magistrates Court at Githongo for a grant of letters of administration intestate. 2.Subsequently, a grant of letters of administration intestate was issued on 20th May 2023. The grant was confirmed on 27th November 2023, whereby the estate was distributed as follows:LR. NO. Abothuguchi/KIthirune/229a.Margaret Kathure Mwebia - 2 ½ acres.b.Patrick Koome Kaburu - 1 acrec.Lucy Gakii Nkoroi – ½ acre 3.Vide application dated 3rd June 2024 the respondent moved the trial court seeking the following orders:a.That the survey that was done on Land Parcel No. Abothuguchi/Kithirune/229 on the 10th day of April 2024 be repeated and beacons be erected afresh.b.Costs of the application. 4.The 2nd appellant filed a replying affidavit apposing the application vide a ruling delivered on 30th August 2024. 5.The trial court allowed the said application. The Appeal 6.Aggrieved by the said ruling, the appellants filed a Memorandum of Appeal dated 27th September 2024 in which they raised the following grounds:a.That the learned trial magistrate erred in law and fact by allowing the re-survey work on L.R No. Abothuguchi/Kithirune/229 to give a portion of land to IPCA church when the petitioner had no legal right to sell the land before the confirmation of the grant of letters of administration in respect of the estate of the deceased.b.That the learned trial magistrate erred in law and fact he failed to find that the agreement for sale of land which had been entered between the petitioner and IPCA church was null and void since they were intermeddling with the estate of the deceased.c.That the learned trial magistrate erred in law and fact by finding that the beneficiaries were estopped from denying the existence of AIPCA church by the principle of estopel when the same had no application in the matter.d.That the learned trial magistrate erred in law and fac t by failing to find that the court having distributed the estate of the deceased the petitioner was seeking to re-open the hearing of the succession cause by disguising that she was seeking a repeat of the survey work on the land.e.That the learned trial magistrate erred in law and fact by entertaining the claim by IPCA church when it was not a party in the succession cause.f.That the learned trial magistrate erred in law and fac t by failing to find that the survey work was done in the presence of all the beneficiaries hence there was no basis to re-survey the land again.g.That the learned trial magistrate erred in law and fact by failing to consider the evidence before the court by the appellants.h.That the learned trial magistrate’s ruling is against the weight of evidence and the same is bad in law. 7.The appellants sought the following orders:a.That this honourable court do allow the appeal herein.b.That this honourable court do find that the respondent did prove (sic) her case to resurvey on LR. No. Abothuguchikithirune/229 and set aside the order dated 30/8/2024.c.That costs of this appeal be awarded to the appellants. Appellant’s Submissions: 8.It was submitted that the sale of a portion of land forming the estate by the respondent was unlawful since it was done before confirmation of the grant herein and the consent was sought from the other beneficiaries. That the respondent’s actions amounted to intermeddling. Cited in support of this submission was the case of Benson Mutuma Muriungi vs CEO Kenya Police Sacco and Another (2016) eKLR. 9.It was further submitted that the respondent being the administrator of the estate was present during the survey and that the application in question amounted to re-opening of the succession cause. Respondent’s Submissions: 10.The respondent submitted that the trial court was correct to order a re-survey as the initial one was done under its authority. That the respondent was not involved in that survey and that she had been assured that she would be allocated land where the church stands, since she had sold her beneficial interest to the said church. 11.It was further argued that under section 51 of the Law of Succession Act, a beneficiary of an estate has a right to transfer their beneficial interest even before the grant is confirmed, provided that such transfer is not prejudicial to the rights of other beneficiaries. That the sale to the church was done in good faith. Cited in support of the submission were the following cases;a.M’ Angelo M’ Mutiga (deceased ) (2015) eKLR.b.In the matter of the estate of Kairu (deceased) (2015) eKLR,c.Njeru vs Gikunda (2014) eKLRd.Ruth Wairimu Karanja vs Njiru Karanja (2017) eKLR 12.It was further submitted that the trial magistrate correctly raised the question of estoppel under section 20 o the Evidence Act as against the beneficiaries who were fully aware of the sale to the church. Analysis and Determination: 13.Being a first appeal, the task of this court is re-evaluate the evidence or material placed before the trial court and come up with an independent conclusion. (See Selle vs Associated Motor Boat Co. Ltd (1968) E.A 123.) 14.The respondent herein was a co-administrator of the estate. She co-swore the affidavit in support of the summons for confirmation of the grant which led to the distribution of the estate. The respondent claims that she was not present during the survey. 15.The question is who could have brought the surveyor if not her or her co-administrator? In my view that particular reason runs hollow. 16.It is apparent that the respondent sold land to the church way back in 2019 and 2020. By then her petition for the grant had not been filed. Her right had not crystallized as a beneficiary. 17.Therefore, what she did amounted to inter-meddling with the estate. Even if she was an administrator, she had no power or right to dispose any part of the land forming the estate before confirmation. 18.Section 82 of the Law of Succession Act is clear on this. It provides as follows:82.Powers of personal representativesPersonal representatives shall, subject only to any limitation imposed by their grant, have the following powers—(a)to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;(b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:Provided that—(i)any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and(ii)no immovable property shall be sold before confirmation of the grant; 19.The respondent’s argument is that a beneficiary has the power to dispose of her/his share in an estate before confirmation of the grant. 20.That argument cannot stand since that is expressly against the law. The only person allowed by the law to deal with the estate is the personal representative. This was confirmed in Re Estate of Paul M’Maria deceased (2017) eKLR where the court stated:-“The restriction provided by law that no immovable property shall be sold or distributed before confirmation of grant is not merely directory or an embellishment. It is a statutory command with fatal consequences on any transaction done in contravention of the said law. Accordingly, acquisition of immovable property of the estate in contravention of the Law of Succession Act is tinctured with killer poison; and is unlawful acquisition; thus, property so acquired does not enjoy the protection of property rights under article 40(6) of the Constitution. 21.The argument by the respondent is self- negating since she did not know where she would get her portion of land. Assuming that the other beneficiaries had acted like her, wouldn’t there be chaos when it came to distribution of the property? 22.It is my finding that the sale by the respondent was illegal and cannot be a basis for a re-survey of the land. The church knew that the respondent was not an administrator yet it went ahead to purchase the land. The church is as guilty as the respondent in intermeddling with the estate. Its recourse is against the respondent and that recourse cannot affect the other beneficiaries. 23.Having considered the matter, I find that the trial court erred in ordering a re-survey of the land against the wishes of the other beneficiaries. The trial court order amounted to aiding an intermeddler for gain from her illegal activity, to the prejudice of other beneficiaries. 24.Consequently, I set aside the ruling of the trial court and substitute it with an order dismissing the application dated 3rd June 2024 with costs. 25.The appellant shall have the costs of the appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 2ND DAY OF JUNE, 2026.H. M. NYAGAJUDGE