https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12354

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL APPEAL NO. E005 OF 2024** **RE ESTATE OF MUKENI IVUTI NGAU (DECEASED)** **PATRICK MUTUA MUKENI.......................................…APPELLANT** ***-VERSUS-*** **JAMES MUTHAMA MWAKA......................................RESPONDENT** **JUDGMENT** Mukeni Ivuti Ngau died on 16/10/2010. By a letter dated 14/8/2019, the Chief Kalamba office wrote a letter identifying the list of beneficiaries to his estate to be his wife Loise Mbiku Mukeni, son Patrick Mutua Mukeni, daughters Jane Wanza and Felister Kambua Mukeni. Patrick applied for grant of letters intestate in Makueni CM’s Succession Cause 355/2020 listing the aforementioned as the beneficiaries, and the asset of the estate to be Nzaui/Kalamba/501 Grant was made to him dated 3/12/2020. On 5/10/2021 he filed Summons for Confirmation of Grant distributing the estate of the deceased, **6.932 Acres** to be registered in his name in trust for himself and the other beneficiaries, and 1 Acre to Raphael Kioko Mukwala. On 16/12/2022 James Muthama Mwaka filed summons for Revocation of Grant, seeking the revocation of the grant made to Patrick. James stated that he was the Administrator of the Estate of his father James Mwaka Mailu, he claimed that in 1975 the deceased **Mukeni Ivuti** sold to John Mwaka Mailu a portion of his land. He annexed to his affidavit of support handwritten agreement, correspondence to Patrick demanding the transfer of portion of LR Nzaui/Kalamba/501 on the ground that it had been bought by Muthama Mwaka. The demand letter was dated 23/6/2022, through the chief Kalamba Location. In his reply sworn on 12/4/2023 Patrick denied that his father had sold any land out of LR Nzaui/Kalamba/501 and that even if there was such a claim, it would be time barred. That the claim was suited for the ELC court, as the claimant did not have any beneficial interest in the estate of his father. James filed a supplementary affidavit – deponing about a boundary between the land his father allegedly bought from the father of Patrick, that Patrick had been summoned severally to the chief’s office over the issue. Parties filed written submissions. By a ruling dated 11/4/2026, the learned trial magistrate found in favour of James stating: *This gist of this application is that the applicant James Muthama Mwaka is the Administrator of his late father John Mwaka Mailu. He contends that prior to this death he had purchased a parcel of land measuring 3.5 acres out of land parcel LR number Nzaui/Kalamba/501 registered in the name of deceased herein. That the two had executed a sale agreement and proof of payment.* *That the authenticity of the sale agreement has not been challenged.* *The Respondent on his part contends the summons filed herein is an abuse of the court process. The refutes the averment that the Applicant’s father bought land from the deceased herein and that no purchase price was ever paid. That the alleged sale having been executed way back in 1975 is unenforceable in law and it violates the Land Control Act, the Law of Contract and the Law of Limitations Act.* *The Applicant herein is seeking to enforce a* ***purchaser’s right****. He has produced a* ***sale agreement that was executed by his late father and the deceased herein****.* ***The same has not been challenged.*** *The same is not time barred considering the nature of the proceedings herein.* *I concur with the Applicant that the Respondent herein seems to concede to the claim but changes tune by claiming that the cause of action lies in the Environment and Land Court. This is not the correct position as a* ***party is at liberty to choose a forum that suits his claim****. To me this is the correct a forum the cause herein deals with the estate of deceased person.* *The grant herein confirmed on 27th October, 2022 yet the demand letter is dated 23rd June, 2022. This is a clear indicator that the Respondent herein was well aware of claim by the Applicant. He nevertheless went ahead and applied for confirmation of the grant.* *I find merit in the summons filed herein ad I proceed to allow it.* ***I hereby revoke the grant herein and order that the Applicant be and is hereby granted 3.5 acre out of Land Parcel Nzaui/Kalamba/501****.* *(Emphasis mine)* Aggrieved, Patrick filed this appeal on the grounds. 1. *The learned Magistrate erred in law and fact in revoking the petitioner's grant dated 16th December 2022, in total disregard of the fact that the grounds adduced by the respondent were premised on a sale agreement which was contested and had no capacity to move the court on revocation of the same.* 2. *The learned Magistrate erred in law and fact in entertaining a party who was not part of the deceased estate and/or beneficiaries, and his claim to the estate was only purchaser's interest.* 3. *The learned Magistrate* *erred in fact and law by ignoring the fact that the sale agreement was never produced and the same had been made between two deceased persons.* 4. *The learned Magistrate erred in law and fact by allowing the respondent's application when he had no jurisdiction, as the issues raised are well within the purview of the Environment and Land Court under Section 12 of the Land Act.* 5. *The learned Magistrate erred in law and fact in proceeding to revoke the grant and awarding the respondent 3.5 acres out of land parcel number NZAUI/KALAMBA/501, in total disregard of the law.* 6. *The learned Magistrate erred in law and fact in revoking the appellant's grant dated 16th December 2022, leaving the said estate unadministered and failing to give directions on the rectification or issuance of a grant.* 7. *The learned Magistrate erred in law and fact in arriving at a one-sided verdict and in total disregard of the fact that the sale was contested, and relying on a sale agreement that could only be authenticated by the Environment and Land Court, and the same was not produced in its original form.* ***Reasons wherefore the appellant prays:*** *a. That the appeal be allowed.* *b. That this Court do quash and/or set aside the lower court's ruling dated 11th April 2024 and reinstate the revoked grant dated 16th December 2022.* *c. That this Court do order and direct that the respondent seek legal redress of his claim through the Environment and Land Court.* *d. That the costs of this appeal and the court below be borne by the respondent.* **SUBMISSIONS** Parties filed written submissions. **The Appellant** The gist of the appellant’s submissions were that the respondent had not established any beneficial interest in the estate as per Section 29 of the Law of Succession Act, as his is a purchaser’s claim. That the alleged sale agreement was not subjected to any trial to warrant the court’s reliance on it, and that the trial court ought to have found it did not have jurisdiction. That the respondent was not even a party to the alleged sale agreement of 1/7/1975 and could not submit on its content. The appellant relied on **Estate of Prisca Onyango Nande Kakamega Succession Cause No. 836/2013** where the court stated *...Is that any disputes or questions or issues that require court intervention, which revolve around sale, registration and transfer of land, fall within the jurisdiction of the Environment and land Court. The Land Registration Act and the Land Act, therefore, confer jurisdiction in the Environment and Land Court with regard to all the processes that are subject to the two statutes, and, therefore, any reference in the two statutes to court is meant to refer to the Environment and Land Court and any subordinate court that has been conferred with jurisdiction over the process the subject of the two statutes****.*** it was submitted further that where there is no jurisdiction the court cannot exercise power without violating the principles of rule of law and legality, that this was the context that the Court of Appeal, in **Owner of the Motor Vessel “Lilian S’ vs. Caltex Oil (Kenya) Ltd [1989] eKLR**, stated: *“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it hold the opinion that it is without jurisdiction.”* **The Respondent’s** The respondent Relied on **Re estate of Muraguri Murathu (Deceased) 2019 KEHC 2056 (KLR)** where the court citing the ***Estate of Julius Ndubi Javan*** stated *“Applying the test of law in Section 76 of the Law of Succession Act, the fact that there was an agreement, between the deceased and the applicant for sale of the suit land is important to these proceedings. It seems also that consideration may have passed between the two parties. I am aware that this court does not have jurisdiction to determine the validity or enforceability of the said agreement. Environment and Land Court does; it is the court which is constitutionally mandated to determine such matters. But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court make an informed decision on distribution of the estate. Needless to state that, in any judicial proceedings, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimeae fidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law. I will give ample justification for taking this position.”* The respondent also relied on In re estate of ***Laurent Muitiriri Njoroge (Deceased) [2017] KEHC 8278 (KLR).*** where it was stated *From the material before me it would appear that the applicant does have an arguable case. To do justice in the circumstances, it may be necessary for the property in question to be preserved pending the filing and determination of a suit by the applicant at the Environment and Land Court. the said preservation is envisaged by Rule 41(3) of the Probate and Administration Rules, where assets whose ownership is contested is set aside by way of being removed from the distribution schedule to await determination of title in separate proceedings.* The Respondent argues that the respondent came to the right forum, and that there was need to preserve the estate pending the filing of a suit to determine the issue. This court was urged to stay the administration of the estate pending the determination of the respondent interest in the estate. **Analysis and Determination** I have carefully considered the appeal, the entire record, the rival submissions. The issue is whether the trial court was in error in revoking the grant issued to Patrick Mutua Mukeni on account of the application by James Muthama Mwaka. In addition, whether this court should stay the administration pending the determination of the respondent’s alleged claim. It is clear to me that the trial court found that there was a sale agreement for the sale of a portion of LR Nzaui/Kalamba/501 to the father of the respondent by the father of the appellant. I looked at the record. The alleged sale agreement was in the Kikamba language and I did not see any translation to either English/Kiswahili. I have the advantage of the ability to read the language – the agreement is dated 1975, it is for the sale of a piece of land referred to as “*kilungu”.* There is no mention of the parcel LR Nzaui/Kalamba/501. On the face of it, one cannot determine that the portion of *kilungu* of land referred to was part of Nzau/Kalamba/501. In addition, the agreement was said to have been entered into in 1975. The alleged seller died in 2010. It is not clear from the respondent when the alleged buyer died, but there was the time for the 2 parties to the alleged sale agreement to complete the sale or clarify the whereabouts of the *‘kilungu’* of land referred to. For the respondent to qualify for the order of stay he must lay before the court a prima facie that he has a tenable claim as against the estate. But in this case the respondent did not place before the trial even the most minimal evidence to support that claim. Merely presenting a piece of paper with writings on it is not proof that there was a sale agreement for the purchase of part of the estate. In fact it is not clear where the 3.5 acres awarded by the trial court came from. Hence, there is no saying with any degree of certainty that the portion *(kilungu)* allegedly sold by the deceased was part of LR. **Nzaui/Kalamba/501.** The respondent did not produce any evidence to show that the appellant was aware of the sale, so as to warrant an obligation at succession, to inform those people about it. From the record, there was nothing to obligate the applicant to involve the respondent. I find that the two authorities cited by the respondent are distinguishable because of lack of evidence establishing the respondent’s claim upon the estate of the deceased Mukeni Ivuti. The learned trial magistrate had no jurisdiction in this cause to make the orders he made, to the effect of finding that there was a sale agreement for 3.5 acres of land out of the deceased’s estate. It was not correct to state that the respondent had the choice to choose where to lay his claim. This was a purchaser’s claim on that was contested. He had to establish the same before laying it against the estate. The respondent ought to have filed a suit in the appropriate court before coming to this cause without sufficient evidence Section 76 of the Law of Succession Act sets out the conditions for revocation of grant. The respondent did not establish any wrong doing on the part of the appellant. The respondent’s claim if any is before the ELC court and as it now, no liability has been established against the estate for Mukeni Ivuti on behalf of estate of James Mwaka. Ultimately I find that the appeal has merit. The Ruling of the trial magistrate be and is hereby is set aside, The grant *dated 16th December 2022* to Patrick Mutua Mukeni be and hereby reinstated. *The costs of this appeal are awarded to the estate to be borne by the respondent.* *The matter be remitted to the subordinate court for the completion of the administration of the estate.* *Orders accordingly* **Judgment Dated, signed and delivered on virtually at Kabarnet High Court on 31st July 2026.** **MUMBUA T. MATHEKA** **JUDGE** **In the presence of**:- Court Assistant – Chrispol.