https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12917

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HIGH COURT FAMILY APPEAL NO. E008 OF 2025 PATRICIA KAKENE BERNARD………………………………………………………………..APPELLANT VERSUS STEPHEN MULI MBITHI……………………………………………………………………. RESPONDENT **JUDGMENT** ***(Being an Appeal from the Ruling by Hon. Stephen Jalang’o Senior Principal Magistrate in Tawa Succession Cause No. E025 of 2021 dated 12th June, 2025)*** **Introduction.** 1. Stephen Muli Mbithi the respondent herein petitioned for grant of letters of administration intestate of the estate of Mbithi Nguta alias Andrew Mbithi Nguta (deceased) who died on 25th June, 2000. 2. The grant of letters of administration was issued on 19th October, 2021 to the petitioner and confirmed on 20th July, 2022 with pursuant to the provisions of Section 71(1) and (3) of the Law of Succession Act. The petitioner was to hold the deceased estate for himself and all other beneficiaries named in the chief’s letter dated 26th August, 2021. **Application by the Appellant.** 1. Before the petitioner could move and distribute the estate, Patricia Kakene Bernard filed summons dated 3rd July, 2024 pursuant to Section 83 of the Law of Succession and Rules 49 and 73 of the Probate and Adminustration Rules seeking the following substantive prayers: 2. *That pending the hearing and determination of the application, the court do issue a temporary injunction restraining the respondent or his agent from further dealing with the estate of the deceased including:* 3. *Mavoko Town Block 3/201* 4. *Mavoko Town Block 3/2779* 5. *Mavoko Town Block 3/956* 6. *Masii/Vyulya/760* 7. *Masii/Vyulya/1419* 8. *Masii/Vyulya/1416* 9. *That the honourable court do order that the respondent produce for good record and account detailed statement of accounts and affairs of the estate and transaction up to and until the date of such order.* 10. *That the honourable court do order cancellation of an irregular and unlawful sale and or transaction in respect of land parcel Mavoko Town Block 3/2779.* 11. *That the honourable court be pleased to direct the Administrator to file a surveyor’s report indicating each of the beneficiaries entitled share out of the estate landed properties, and that the certificate of confirmation of grant dated 20th July, 2022 be reviewed accordingly.* 12. *That the respondent be compelled to by the hounurable court to sign and/execute all the requisite documents for sub-division and transmission of respective shares of the beneficiaries and in default this honourable court authorize the court administrator to sign and/or execute the requisite documents for such sub-division and transmission for the applicant’s share pursuant to the certificate of confirmation of grant issued on 20th July, 2022.* 13. *That the administrator failed to disclose the existence of the land parcel No. Mavoko Town Block 3/2561 which is registered in the of the deceased and thus need to review the certificate of confirmation of grant to include the said land parcel* 14. *That the costs of the application be in the cause.* 15. The summons was supported by the grounds on the face of it and the supporting affidavit of the appellant sworn on 3rd July, 2024. Basically, the appellant stated that she is wife of Bernard Mutuku Mbithi (deceased) who was the son of the deceased herein. That a certificate of confirmation of grant was issued to the respondent in respect of the estate of the deceased where the respondent was to hold all the properties of the deceased in trust for himself and all other beneficiaries of the estate including the appellant herein. The appellant contended that the respondent has, without any reasonable or lawful cause, declined to sign and/or execute the requisite sub-division and transmission documents in compliance with the certificate of confirmation of grant issued on 20th July, 2022. The appellant further contended that the respondent has frustrated all efforts by the appellant to process the requisite documents for certificate of title and ensure that the administration of the estate is completed within the stipulated time. 16. The appellant further contends that attempt by the chief to mediate over the issue and ensure that the administration of the estate is completed have hit a snag as the respondent has refused to complete the administration process. 17. It was further contention of the appellant that the respondent has been selling part of the properties of the estate which include land parcel No. Mavoko Town Block 3/2779 denying the appellant and other beneficiaries their entitled share. 18. For the foregoing the appellant alleged that the respondent was not fit and proper person to administer and/or distribute the deceased estate and unless compelled by the court the estate will remain unadministered and the beneficiaries will not get their entitled respective shares of the estate. **Response by the Respondent.** 1. In response to the summons the respondent filed an affidavit sworn on 30th July, 2024. He termed the same as frivolous, scandalous and vexatious, devoid of merit, an abuse of the court process and ill-advised. 2. The respondent averred that there is no provision for amendment of summons. It was further the deposition of the respondent that the appellant cannot purport to move the court to rectify the grant when it is the respondent who is entitled to move the court to rectify the same. 3. Regarding the omission of some of the properties of the deceased estate the respondent avers that at the time of the filing of the petition they only knew the physical location of the said properties but did nit have the parcels number which he later came to know about and has included them in proposed mode of distribution. The respondent averred that he has made the necessary for reissuance of the title numbers of the said parcel including reporting to the police of the loss of the said titles. 4. It was deposed by the respondent that the appellant had legal basis to lay claim on the estate of Bernard Mutuku Mbithi as she was not the administrator of his estate. 5. The respondent further averred that the proposed mode of distribution of the estate was fair to all the beneficiaries. In any case it was the contention of the respondent that the appellant and her accomplice have continued to intermeddle with the deceased estate by selling part of the land. 6. The summons was heard by way of *viva voce* evidence. The appellant testified before the lower called and called two witnesses. The respondent on the other hand testified and called three witnesses. **Appellant’s Case.** 1. The appellant and her witnesses Martin Gideon Mutuku and Peter Ngui Mutundu relied on their statements dated 17th September, 2024 which are *pari materia.* Their position was that the respondent having been issued with the certificate of confirmation of grant has declined to move and have the estate distributed in compliance with the said grant notwithstanding attempt to mediate the issue. They all stated that they were not involved in the sale of land parcel Mavoko Town Block 3/2561. They all confirmed that the deceased was polygamous and the estate ought to be distributed according to the units in each family, with each unit receiving equal share. It is their contention that the land parcels in Lukenya-Mavoko are more valuable than the land parcels in Masii-Vyulya. They denied knowledge that the deceased had wished the 1st family would settle in Lukenya-Mavoko and the 2nd family in Masii-Vyulya. 2. When cross-examined the appellant confirmed that the deceased had two wives with the 1st wife staying in Lukenya since 1979 whereas the 2nd wife who is her mother-in-law staying Masii. It was her evidence that the two families stayed separately. She also confirmed that her late husband was included as beneficiary of the deceased estate. She further confirmed that she sold part of the land after the demise of her husband to cater for burial expenses. She denied knowledge that the deceased wished to have the 1st family settle in Lukenya and 2nd family settle in Masii. 3. Martin Mutisya Mutuku who testified as PW2 the son of the appellant when cross-examined confirmed that her mother sold two parcels of land after the demise of his father Bernard Mutuku. He further stated that the 1st family has never demanded land in Masii. He confirmed that all along the 1st family lived in Lukenya while the 2nd family lived in Masii. **Respondent’s Case.** 1. The respondent and his witnesses similarly relied on their statements which are *pari materia.* Their common position is that the deceased had two wives and during his lifetime he separated his houses with the 1st house moving and settling permanently at Lukenya and the 2nd house remained at Vyulya. Further they stated that sometimes in the year 2000 the deceased convened a family meeting to enquire whether there was anyone discontented with the arrangement of the 1st family settling and sharing land in Lukenya and 2nd family settling and sharing land in Vyulya and none of the family members objected including the appellant herein and her late husband who were present in the meeting. 2. Further it was the evidence of the respondent and his witnesses that it is their desire to honour the wishes of the deceased to avoid curse. It was their position that the court adopt the wishes of the deceased. 3. It was further the evidence of the respondent that the 1st family donated five acres to be sold so as to cater for the actualization of the distribution of the estate by subdividing the same and meeting related costs. 4. The respondent further stated that the appellant has illegally sold part of the properties of the deceased before succession proceedings were commenced thus intermeddling with the deceased estate. 5. The respondent and his witnesses who are from the 2nd family together with the appellant were categorical that the 2nd family did not have claim on the land in Lukenya. 6. In cross-examination the respondent admitted that he did not involve the appellant in the succession proceedings but he captured the name of the appellant’s deceased husband. He also admitted that he did not include land parcel Mavoko Town Block 3/251 which belonged to the deceased. On the sale of land parcel Mavoko Town Block 3/2779 he stated that it was sold following a family agreement to raise funds for sub-division of the estate of the deceased to the beneficiaries. He produced minutes to that effect where the appellant sent a representative. 7. In further cross-examination he maintained that his late father convened a meeting where he told them that the 1st family would permanently settle and share lands in Lukenya whereas the 2nd family was to settle and share land in Vyulya. 8. In re-examination he said the appellant was covered under the estate of Bernard Mutuku Mbithi. He also stated that the land in Lukenya was sold to cater for the succession costs after consultation with the 1st family. It was his evidence that no one in the 2nd family apart from the appellant was claiming share of the properties in Lukenya. 9. Marrietta Ndila Mbithi the 2nd wife of the deceased when cross-examined she said the 1st family was given land in Lukenya whereas she was given land in Masii and each child was to get equal shares from the respective land given to each family. She had no problem with the wishes of the deceased as customarily the deceased could divide his land to the two wives. 10. Regina Nzisa Nthusi also in cross-examination said that the deceased had directed that the 1st family settle in Lukenya whereas the 2nd family settle in Masii but there was no written document to that effect. **Trial Court’s Findings.** 1. The trial court after considering both the appellant’s and respondent’s case identified three issues for determination. Firstly, whether the grant issued on 20th July, 2022 should be rectified; Secondly, whether the deceased properties in Lukenya and Masii should be distributed equally amongst all the beneficiaries; and finally, whether the sale of land parcel Mavoko Town Block 3/2779 should be revoked and/or cancelled. 2. On the first issue the trial court found that there was no dispute that two parcels of land Mavoko Town Block 3/2561 and Mavoko Town Block 3/3904 form part of the estate of the deceased and having been excluded he ordered for the certificate of grant to be rectified to include the same. On the second issue guided by the case of ***Peter M. Murungi & Another vs Enid Gatune Mwongera & Another (2016) KEHC 3387 (KLR)*** the trial court found that on the evidence adduced, the deceased had settled his two families in their respective properties in Lukenya and Masii way back in 1970s and there was no reason to disrupt that after the demise of the deceased. Finally, on the sale of the Mavoko Town Block 3/2779, the trial court found that the same was sold above board with the consultation of the family for purposes of facilitating the sub-division of the deceased estate to the beneficiaries. Consequently, he dismissed the amended summons dated 3rd July, 2024 and rectified the grant to include the omitted deceased properties. He further ordered that 1st family do share equally all the deceased properties in Lukenya whereas the 2nd family do share equally the properties in Masii-Vyulya. **The Appeal.** 1. Aggrieved by the decision of the trial court, the appellant preferred this appeal in the High Court. The appellant raised seven (7) grounds to wit: 2. *The learned trial magistrate erred in law and in fact in failing to consider the evidence before him as a whole with respect to distribution of the deceased estate;* 3. *The learned trial magistrate erred in fact and law in failing to find that the respondent herein was holding the estate properties in trust for himself and other beneficiaries;* 4. *That the learned trial magistrate erred in fact and law by finding that the deceased had distributed his properties to the two families;* 5. *The learned trial magistrate erred in law and facts by finding that the sale of land parcel Mavoko Town Block 3/2779 was regular;* 6. *That the learned magistrate erred in facts and law by failing to find that he lacked pecuniary jurisdiction to hear and determine the matter given the value of the properties involved;* 7. *The learned trial magistrate erred in law and fact in otherwise failing to exercise discretion in the proper manner resulting in injustice to the appellant; and* 8. *That the learned trial magistrate erred in law and in fact in failing to take into account the totality of the evidence presented before him as well as the applicable law thus arriving at the wrong conclusions/findings.* **Appellant’s Submissions dated 2nd February, 2026** 1. Firstly, the appellant submitted that the trial magistrate overreached his power by re-distributing the estate of the deceased in an application for rectification. It was argued that the certificate of confirmation of grant having been issued to the respondent to hold the deceased estate in trust for himself and other beneficiaries, the succession was uncontested and as such the court ought not to have distributed the estate. This argument was premised on ground that once a certificate of confirmation of grant is issued it is final and can only be altered in very limited circumstances. The appellant relied on Section 74 of the Law of Succession Act and the case of ***Re Estate of Charles Kibe Karanja (deceased)*** where the court examined the errors which can be rectified under Section 74 of the Law of Succession Act. 2. It was argued that in this case the trial court was only seized with an application for rectification of the grant but after rectifying the grant to include the omitted properties went ahead and redistributed the estate contrary to the prevailing certificate of confirmation of grant. 3. Secondly, the appellant faulted the trial court for failing to comply with Section 40 of the Law of Succession Act. The appellant submitted that there was no dispute that the deceased was polygamous and did not leave a valid will. It was argued that there was no agreement on the mode of distribution of the estate. As such the estate ought to be distributed equally among all the beneficiaries from the two houses noting that the certificate of confirmation of grant did not stipulate the mode of distribution. The appellant decried that the properties to be distributed to the 1st house were more valuable than those of the 2nd house hence the distribution was contrary to Article 27 of the Constitution and Section 40 of the Law of Succession Act. 4. The appellant submitted that there was no evidence to show that the deceased had distributed his estate during his lifetime as argued by the respondent. Consequently, the distribution of the Lukenya-Mavoko properties to 1st family and the Masii-Vyulya properties to the 2nd family was not compatible with provision of Section 40 of the Act. Reliance was on various decisions among them ***Re Estate of Michael George Tendwa Said (deceased) (2020) e KLR, In re Estate of Cheptoo Arap Koisum (deceased) (2025) KEHC 6087 (KLR).*** 5. On the reliance of the wishes of the deceased, the appellant submitted that the same did not amount to an oral will or a gift in contemplation of death hence the said wishes do not suffice as they were never perfected. Reliance was placed on the case of ***in re Estate of Cheptoo Arap Koisum (deceased) supra.*** 6. The appellant also faulted the trial court for redistributing the estate without ascertaining the value so as to ensure fair distribution. Reliance was placed in the case of ***Muriungi vs Mwongera (2024) KECA 1709 (KLR).*** 7. The appellant finally submitted that the trial court erred by finding that the sale of Mavoko Town Block 3/2779 was regular as consent of the beneficiaries was not obtained. He cited the case of ***Santuzza Bilioti alias Santuzza vs Giancarlo Falasconi (2014) e KLR*** on then power of probate court to cancel a title. **Respondent’s Submissions dated 12th February, 2026.** 1. The respondent contested the appeal. He submitted that the trial court considered all the evidence of the witnesses in arriving at his decision. It was argued that the matter was heard by way of viva voce evidence and the trial court had the benefit of seeking clarifications from the witnesses. 2. On the ground that the trial magistrate failed to make a finding that the respondent was holding the estate on his behalf and other beneficiaries, the respondent submitted that such prayer was never sought in the amended summons. As such the same cannot be raised at this stage as it was not canvassed in the lower court. The respondent relied on the case of ***Kiarie vs Kiratu (2023) e KLR.*** 3. The respondent supported the trial court finding that the deceased had distributed his properties in his lifetime to his two families settling the 1st family in Lukenya-Mavoko and 2nd family in Masii-Vyulya because the same was supported by the evidence adduced before the court. He cited the case of ***Scholastica Ndululu Suva vs Agnes Nthenya Suva Civil Appeal No. 49 of 2017*** where the court has discretion in distribution of an estate taking into account the factual circumstances of each particular case which the trial court took and judicially exercised the same. Further reliance was placed in the case of ***In Re Estate of Morogo A. Mugun alias Moroko Mukumu Succession Cause No. 113 of 2011.*** 4. The respondent submitted that the appellant in her application had sought to have the respondent sign transfer documents for her share and also raised the issue of distribution. As such the trial court was legally bound to consider the said issues hence he did not overreach his powers as argued by the appellant and the direction of the trial court were in tandem with the appellant’s prayers the respondent does file a proposed distribution schedule. 5. The respondent maintained that the sale of parcel Mavoko Town Block 3/2779 was regular as all the beneficiaries consented to the sale of the same to raise money for facilitation of sub-division of the properties. 6. On the issue of pecuniary jurisdiction, the respondent submitted that the same was never raised by the appellant before the trial court hence the same ought to not be raised at this stage. 7. The respondent urged the court to dismiss the appeal. **Analysis and Determination.** 1. I have considered the record of appeal, the ruling of the trial court, the submissions by the parties as well as the case law cited by the parties. 2. This is a first appeal. It is trite law that the duty of the court is to re-evaluate the evidence which was adduce before the trial court and come up with its finding and conclusions. This was stated in the case of ***Selle & Another vs Associated Boat Co. Ltd. & others (1968) E.A 123.*** 3. Having duly considered the appeal herein, the issue which arise for determination is whether the trial court redistributed the deceased estate, whether such distribution was in accordance with Section 40 of the Law of Succession Act and whether the sale of Mavoko Town Block 3/27779 was irregular. 4. Before I consider the foregoing issue, I note that the appellant raised the question of the pecuniary jurisdiction of the trial court. That issue was never raised before the trial court. As a general rule, the appellate court will not consider an issue that was not raised, pleaded or argued before the trial court. It is trite that parties are bound by their pleadings and evidence presented in the lower court. It will be unfair and contrary to doctrine of finality for a party to be allowed to completely raise new argument on appeal. Therefore, this court cannot at the appeal stage consider the issue raised by the appellant as to the pecuniary jurisdiction of the lower court. In any case the appellant subjected herself to the jurisdiction of the trial court and she cannot now claim that court had no jurisdiction. 5. On the main issue in this appeal on whether the trial court redistributed the deceased estate in an application for rectification of the certificate of confirmation of grant to include the properties which were left out, it is clear from the proceedings that the grant of letters of administration was confirmed on 19th July, 2022 where the respondent was to hold the estate on his behalf and in trust for all the beneficiaries. What is clear from the foregoing is that there was no agreement on how the estate will be shared to each individual beneficiary. 6. However, in her application the appellant sought to have the respondent file a surveyor’s report indicating what share each of the beneficiaries was entitled out of the estate of the deceased. This prayer by the appellant is the one which triggered the question on what each beneficiary was entitled to. It is during the hearing of the application by the appellant that the issue arose that the deceased had wished to have the 1st house lay claim on the Lukenya-Mavoko lands while the 2nd family would lay claim on the Masii-Vyulya lands. 7. This issue of whether the deceased had wished to settle his families as foregoing came up during the hearing of the application. In fact, it is the appellant who triggered the issue on what share each of the beneficiary was entitled to. It is therefore not correct for the appellant to allege that the trial court redistributed the estate during an application for rectification of grant. In any case, the issue of whether the deceased had made intention on where each family shall be settled emerged during the trial, both parties fully debated it without objection. It became implicitly clear that the trial court was invited to rule on it. In deed that finding of the trial court is the bedrock of this appeal. 8. Having found that the court was invited to determine the issue of distribution of the deceased estate and particularly whether the deceased had wished to settle his two families in Lukenya-Mavoko and Masii-Vyulya respectively, the next issue is whether indeed the deceased had made such wishes. 9. In the instant case there is no dispute that the deceased was polygamous bringing the applicability of Section 40 of the Law of Succession Act into play. It provides as follows: ***“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 estate shall, in the first instance, be divided among the houses according to the number of the children in each house, but also adding any wife surviving him as an additional unit to the number of the children.*** 2. ***The distribution of personal and household effects and the residue of the net estate within each house shall then be in accordance with the rules set out in Section 35 and 38.*** 3. From the foregoing it is clear that where the deceased was polygamous, the estate will be distributed among the houses according to the number of the children with the surviving wife being an additional unit. However, in the instant case the respondent argued that the deceased had wished to have his 1st house settle in Lukenya-Mavoko whereas the 2nd house settle in Masii-Vyulya. The respondent led evidence before the trial court to that effect which the trial court accepted. Further it emerged that the appellant was from the 2nd house and it appeared she was the only one objecting to the alleged wishes of the deceased. 4. From the evidence before the trial court, it is abundantly clear that the 1st family had settled in Lukenya-Mavoko whereas the 2nd family had been settled in Masii-Vyulya. It was also clear that at no time did the 1st family live in Masii-Vyula or the 2nd family live in Lukenya-Mavoko. Much as the deceased did not leave a will, from the evidence adduced before the trial court, the deceased had made his wishes and his intention was to settle the 1st family in Lukenya-Mavoko and the 2nd family in Masii-Vyulya. Those factual circumstances must be taken into consideration in the distribution of the deceased estate. In the case of ***In the Re Late Marogo A Mugun (Deceased) (2019) e KLR*** the court noted the absurdity of blind application of Section 40 of the Law of Succession Act when it held: ***It is therefore evident, that, although section 40 of the Law of Succession Act provides for a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.”*** 1. As I have indicated, it was clear that the deceased wished to have his two families settled in the respective areas with the 1st family settling in Lukenya-Mavoko and 2nd family in Masii-Vyulya. It will be therefore unfair and inequitable if the court were to uproot any of the deceased’s houses and their children from where they have settled and purport to shuffle them in the quest of equality in the distribution of the estate. 2. In the circumstances I find no reason to fault the trial court in his finding that the deceased had settled his two families in the respective lands in Lukenya-Mavoko and Masii-Vyulya. 3. On whether the sale of Mavoko Town Block 3/2779 it was evident that the same belonged to the properties where the 1st house has settled. It was also evident that the same was sold to facilitate the subdivision of the estate a fact which came out clearly from the evidence of the respondent and his witnesses. It is also evident that none of the beneficiaries from the 1st house have complained noting that they are the one to be affected by the sale. In my view and in the circumstances I cannot fault the trial court for finding that the sale was regular and in any case the same was supported by the minutes of a family meeting. 4. Consequently, I find that the appeal has no merit and the same is dismissed. Each party shall bear own costs. **Dated, signed and delivered virtually this 19th August, 2026.** **Francis Kyambia** **Judge.**