https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7255

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION APPEAL NO. E004 OF 2025** **REUBEN NYIKULI LIME …………………………………………………………… APPELLANT** **VERSUS** **PARNAPAS KHAINGA OLUMASAYI ……………………………………. 1ST RESPONDENT** **WYCLIFFE OUKO OLUMASAI …………………………………………… 2ND RESPONDENT** ***(Being an appeal against the entire ruling and consequent orders by Hon. Caroline Cheruiyot – RM in Kakamega Chief Magistrate‘s Court Succession Cause No. E285 of 2023 delivered on 27th October 2023)*** **JUDGEMENT** 1. The appeal arises from the ruling and orders of the trial court in Kakamega Succession No. 285 of 2023, where the Respondents had filed a Notice of Motion in person seeking that their names be included as co-administrators to the estate of the deceased. 2. The Appellant opposed the application and the matter proceeded to hearing by way of viva voce evidence in which both parties adduced oral evidence and called witnesses to support their claim. Upon analyzing both parties' evidence, the trial court ruled in favour of the Respondents. It found that the Appellant had erred in concealing the Respondent’s existence in the succession process, as the Appellant's and the Respondents’ fathers, both deceased, were brothers and had inherited the land from their father. The trial court made an order to include the 1st Respondent as co-administrator of the estate of the deceased. 3. Aggrieved with the decision of the lower court, the Appellant lodged an appeal in which he set out the following grounds:- 4. *The Honorable Trial Magistrate’s appreciation of the evidence placed before her was wanting and particularly was that there were two chief’s letters written by different people during the same tenure.* 5. *The Honorable Trial Magistrate over relied on extraneous matters not in evidence.* 6. *The Honorable Trial Magistrate erred in facts and misapplication of the law by including the 1st Respondent as a Co-administrator in the estate of the late Lime Olumasai alias Lime Olumasayi.* 7. *The Honorable Trial Magistrate’s failure to appreciate that the Respondent’s claim remained a preserve of the Environment and Land Court and not the Succession Court has caused the Appellate at a gross miscarriage of justice.* 8. *The Honorable Trial Magistrate exhibited actual bias in placing over reliance on the Respondent’s witnesses and evidence.* 9. He prays that the entire ruling of the trial court be set aside and the Respondents be condemned to pay costs of the lower court and this appeal. 10. The appeal was canvassed by way of written submissions, which I have read and duly considered. **Appellant’s Submissions** 1. In his submissions dated 16th January 2026, the Appellant argued that the trial court erred in including the 1st Respondent as a co-administrator and ordering that the Respondents make an application for confirmation without undue delay. He further contended that the trial court erred in ordering that the administrators should agree on the mode of distribution and that they be at liberty to commence civil proceedings against the Appellant over their late father’s interest in the assets of the estate. 2. He contested the finding of the court and argued that his father died while he was the registered absolute owner of the land comprised in L.R. No BUTSOTSO/BUKURA/293. He argued that the Respondents, who were his cousins, were not entitled to any portion of the estate. He further contended that the trial court lacked jurisdiction to deal with the matter, as it was sitting as a land court, which was outside its jurisdiction. 3. He quoted Article 162(2)(b) of the Constitution on the power of the Environmental and Land Court (ELC) and maintained that the trial court overreached its jurisdiction in granting the orders it did. 4. According to the Appellant, there was no evidence that the land was ancestral, and the court relied on extraneous matters not in evidence and, in particular, the chief’s letter to rule in favour of the Respondents. **Respondent’s Submissions** 1. In their submissions dated 2nd March 2026, the Respondents contend that there was one issue for determination, namely, whether they are beneficiaries of the deceased. 2. The Respondents claimed that they still reside on L.R. NO. BUTSOTSO/BUKURA/293. Regarding whether the trial court overstepped its jurisdiction, they submitted that the deceased, Lime Olumasai, took responsibility for looking after his late brother, Jackson Olumasai, and his children, and that they stayed on the land for 50 years without being chased by the deceased, and that it was where they called home. They asserted that their deceased father was covered by the Law of Succession Act and thus they were dependants under Section 29 of the said Act. 3. They submitted that the decision of the court was on issues around dependancy, a preserve of the Succession Court which deals with beneficiaries and liabilities of a deceased estate. They maintained that they are actual beneficiaries as per the Chief’s letter and are entitled to share in the equal distribution of the estate alongside the Appellants. **Analysis and Determination** 1. As this is a first appeal, it is this court’s duty to analyze and reassess the evidence on record and reach its independent conclusion in the matter while not forgetting that it did not see or hear the witnesses as they tendered evidence. In ***Selle v. Associated Motor Boat Co. [1968] EA 123,*** as follows: ***“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. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).*** 1. The deceased, Lime Olumasai, died intestate on 1st May 2017, and from the Chief’s letter dated 04th May 2023, his beneficiaries were listed as Gilbert Olumasai Lime (son), Isaac Olumasai (son), Ernest Lime Mulima (son), Reuben Nyikuli Lime (son), Raphael Akhwesa Lukalia, while his estate comprised all that parcel of land known as land L.R. No. BUTSOTSO/BUKURA/293. registered in the name of Lime Olumasayi. 2. The Respondents claimed that they had been living on the deceased's land for over 50 years as children of the deceased’s brother, Jackson Olumasai, and that the deceased had assumed the responsibility of taking them in and caring for them. They relied on the testimony of the 1st Respondent, who stated that they were sons to Jackson Olumasai and beneficiaries together with Moses Inyende Olumasai, Elphas Akala Olumasai, Evans Mbune Olumasai, Hellen Estaboka Olumasai, Repher Eshiuchi Olumasai and Rodah Andika Olumasai. 3. They argued that they are dependants of the estate of their deceased uncle, and their interests ought to be considered. They produced a chief’s letter dated 16th June 2023 in support of their claim. 4. The Appellant and his witnesses did not deny that the Respondents and their siblings reside on L.R. No. BUTSOTSO/BUKURA/293. He contended that the land solely belonged to their deceased father, who took in the Respondents and their father when they had no place to go. He argued that the Respondents could not claim ownership, or that the land was being held in trust for their father at that stage. He entreated the trial court to let him decide on how much land to give to the Respondents from the estate and not to accede to the Respondents’ demands. 5. From the memorandum of appeal and the parties’ written submissions, the issues that arise for this court to determine are:- 6. *Whether the Succession Court exceeded its jurisdiction.* 7. *Whether the trial Magistrate erred in law and fact in including the 1st Respondent as a co-administrator.* 8. *Whether the Respondents qualify as dependants/beneficiaries of the estate of the deceased.* 9. The main issue raised by the Appellant is on jurisdiction. He contended that the trial magistrate overreached her mandate by addressing issues of land ownership and trust, which he averred are within the purview of the Environment and Land Court, and not the trial court. 10. It is noted that the Appellant did not raise the issue of jurisdiction at the outset, whereas a question of jurisdiction ought to be raised at the earliest opportunity. However, the failure to raise the issue at the preliminary stage is no bar to its being raised at any stage of the proceedings, including at the appeal stage. 11. It is settled that when a court determines that it lacks the requisite jurisdiction to hear and determine a matter, it must desist from taking any other step in the matter. In ***Owners of Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Limited [1989] eKLR***, the Court of Appeal, while considering the legal implications of want of jurisdiction, held as follows:- ***“…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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:*** ***“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has*** *……..”****.*** 1. Where a court finds itself without jurisdiction, it cannot assume jurisdiction by itself, as jurisdiction must be donated by the law. In ***Samwel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR,*** the Court held:- ***“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law…”*** See also ***Phoenix of E. A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2018] eKLR***. 1. Article 162(2) envisages the establishment of courts of equal status with the High Court, to exercise jurisdiction over, among others, occupation of and title to land. The relevant provisions state:- ***“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to –*** ***(a) …*** ***(b) the environment and the use and occupation of, and title to, land.”*** 1. In alignment with the Constitution, the Land and Environment Act Chapter 12A Laws of Kenya was enacted, which established the Environment and Land Court that is mandated to hear and determine land disputes. 2. Conversely, Section 48 of the Law of Succession Act authorizes the Magistrates' Court to handle applications and disputes concerning the intestate and testate succession of land and provides: ***“(1)Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7 of the Magistrates Courts Act (Cap 10).”*** 3. Flowing from the Law of Succession Act, a Probate court is focused primarily on identifying the deceased’s dependants/beneficiaries, assets and liabilities, and determining how the free estate of the deceased should be distributed among the legitimate heirs. 4. It is now settled that, notwithstanding the provisions of Sections 47 and 48 of the Law of Succession Act, the mandate of the Probate Court is limited in scope. It has been severally held that it is not designed to handle complex land matters and hence its jurisdiction does not extend to determining issues of ownership of land. 5. There are myriad authorities affirming the Probate court’s limited jurisdiction in land disputes. ***In Re Stone Kathuli Muinde (Deceased) [2016] eKLR****,* Musyoka J stated that claims of ownership over alleged estate property as between the estate and a third party should be resolved through a civil process independent of the succession cause, and if the third party claimant is successful, he should present the decree in his favour to the Probate court. 6. Since a claim of land based on trust constitutes a civil dispute concerning an enforceable interest in land, where the claim is lodged by family members on the premise that the deceased held the title in trust for his siblings, as was the case here, the question is whether such a claim, once raised in the Probate court, should be referred to the Environment and Land Court. 7. In ***Bena Nafula Makna & 2 others v. Nyaoro Akoth Muka Crescentia & 8 others [2019]eKLR,*** the Court of Appeal considered a matter involving a claim of trust by brothers and pronounced itself thus:- ***“By asserting that the disputed land was transferred by Gaitano to Jacob to hold in trust for the appellants, the appellants were claiming that they are beneficiaries of the trust and therefore had equitable interests in the estate. The purpose of the application for revocation of Grant was to revoke the devolution of estate of Jacob on intestacy to facilitate the hearing of their claim to the equitable interest in the estate. The jurisdiction of the court at law and its equitable jurisdiction are fused. The court exercising the fused jurisdiction is required to exercise its jurisdiction in every cause or matter before it so as to ensure, as far as possible, that all matters in dispute between the parties are completely and finally determined and a multiplicity of legal proceedings with respect to any of those matters is avoided.*** ***[15] As section 47 of the LSA expressly provides, the High Court has jurisdiction to determine any dispute under the Act relating to intestate and testamentary succession to estates of deceased persons. It does not matter that the determination of a question of trust would make the proceedings litigious or contentious. Rule 58 of P&A Rules recognizes that a succession court would deal with litigious proceedings and Rule 63(1*)*of P & A Rules imports specific provisions of the Civil Procedure Rules to facilitate the resolution of such disputes. Those rules relate to litigious proceedings. The Civil Procedure Rules which apply to succession proceedings relate to interrogatories and discovery, summoning and attendance of witnesses to give evidence, cross-examination of deponents of affidavits, security for costs and review. Whether or not a court can deal with litigious proceedings is not a question of jurisdiction of the court. Rather, it is a question of whether or not the issue in dispute can be conveniently determined in succession proceedings or in another forum. This was a family dispute. The fact that the land originally belonged to Gaitano and the appellants were closely related to Gaitano and Jacob and have lived in and cultivated the disputed land for a long time coupled with the fact that there were previous proceedings entitled them to be heard in the succession proceedings relating to devolution of the disputed property on intestacy.*** ***It follows that, and we find that, the court erred in declining jurisdiction to entertain the application…”*** 1. The above position was reaffirmed by the Court of Appeal in ***Solomon Muniu Kabata v. Eliud Ngugi Kabata [2025] KECA 524 (KLR)*** when, while handling a second appeal, it held that a Probate court has jurisdiction to determine a claim of trust provided the party alleging the trust proves it with credible evidence. 2. Section 7(3) of the Magistrates Court Act provides that a magistrate’s court has jurisdiction to hear and determine matters of a civil nature under African customary law, including land held under customary tenure. This extends to land held under customary trust. 3. Guided by the above decisions and statutory provisions, I do hold that the Probate court has jurisdiction to hear and determine a claim for trust once it is raised within the succession cause by family members who reside on land comprising the estate of the deceased. 4. Regarding the second issue, the Court of Appeal in ***Mwathi v Mwathi and another [1995–1998] 1 EA 229 (CAK)*** recognized that dependancy is a question of fact to be determined from the circumstances of each case. 5. It was evident from the proceedings that the Appellant’s deceased father never sought to evict the Respondents’ family during his lifetime and that he and his family occupied land which had a defined boundary from the land being occupied by the deceased and his family, even though the deceased was registered as the sole proprietor of the entire parcel. In ***Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi and 5 Others [2016] KEHC 3911 (KLR),*** MabeyaJ found that the applicant was a dependant of the estate of the deceased step-son by virtue of the fact that she lived on land given to her by the deceased and depended on it for her livelihood. He further held that the failure to disclose her occupation of the land constituted outright concealment of material facts. 6. A review of the Respondents’ evidence reveals an expressed claim which, in my view, does not, *in stricto sensu*. fall within the purview of dependancy as stipulated under Section 29 of the Law of Succession Act, which defines dependants as follows:- *“ For this Part, “dependent” means—* *(a) the wife or wives, or former wife or wives, and the children of the deceased, whether or not maintained by the deceased immediately before his death;* *(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children****, children whom the deceased had taken into his family as his own, brothers and sisters****, and half-brothers and half-sisters, as were being maintained by the deceased immediately before his death; and* *(c) where the deceased was a woman, her husband, if he was being maintained by her immediately before the date of her death.”* 1. The evidence before the trial court raised a claim of ownership of land and not a claim of inheritance. The two claims are dichotomous. In my considered view, the Respondents cannot claim an interest in the estate of their deceased uncle on the basis of legitimate ownership arising from an alleged inheritance from their common grandfather, while at the same time claiming to be dependants. In the premises, the Respondents’ claim is distinguishable from the claim in ***Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi and 5 Others (supra).*** 2. Be that as it may, the act of allowing a sibling and his family to live on one’s land for many years under the circumstances asserted by the Respondents raises an issue of an overriding interest but not not dependancy as defined by Section 29 of the Law of Succession Act. Whatever the reason the deceased had in permitting his brother to settle on a distinguishable portion of his land for a period that exceeds the lifetime of many people, the result is that the Respondent’s claim for the land calls for determination by the court. 3. On whether the trial court erred in appointing the 1st Respondent as a co-administrator, Section 28 of the Land Registration Act, 2012 recognizes unregistered rights and encumbrances that bind a registered proprietor of land as overriding interests, including spousal interests, trusts, and rights acquired through prescription or long–term occupation. 4. The Respondents demonstrated that they have an overriding interest in the deceased’s land, and they ought to have been included in the succession proceedings. In my view, the trial court's finding that the Appellant concealed the existence of the Respondents and siblings as people with an interest in the deceased’s property was amply supported by evidence contrary to the Appellant’s submissions that the trial court based its finding of dependency solely on the Chief’s letter. 5. Section 66 of the Law of Succession Act grants the court discretion in appointing administrators and provides that:- ***“66. Preference to be given to certain persons to administer where the deceased died intestate*** ***When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—*** ***(a) surviving spouse or spouses, with or without association of other beneficiaries;*** ***(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;*** ***(c) the Public Trustee; and*** ***(d) creditors:*** ***Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”*** 1. The Court of Appeal in ***re Estate of M’Ngarithi M’Miriti (Deceased) succession cause no.108 of 2014*** emphasized that such discretion should ensure fairness and representation of all beneficiaries. 2. Where good reasons exist, notwithstanding the express provisions of Section 66 of the Law of Succession Act, the Probate court can appoint someone with lesser entitlement to be an administrator to the estate of a deceased person. Based on the fact that the Respondents have lived on the land for many years with an existing boundary delineating the portion occupied by each family, and that the Appellant did not acknowledge the said interest, it is unlikely that he will promote or protect it. It is incumbent upon the court to ensure that the Respondents’ interests are safeguarded. In ***David Adome v. Monica Ogutu [2024] KEHC 7682 (KLR),*** Musyoka J dismissed an appeal against the lower court’s decision to appoint a creditor as an administrator and stated:- ***“The courts have repeatedly held that the list of preference in section 66 of the***[***Law of Succession Act***](https://new.kenyalaw.org/akn/ke/act/1972/14)***, with regard to appointment of administrators, is not binding on the courts, nor cast in stone. It is only a guide. The court retains discretion, on who to appoint as administrator, and it may pass over a person with prior right, and appoint someone down the list, with a lesser entitlement to administration, where good reasons exist. See In re Estate of Gamaliel Otieno Onyiego (Deceased) [2018] eKLR (JA Makau, J), In re Estate of SWM (Deceased) [2018] eKLR (Muigai, J), In re Estate of Janet Eliud Timothy Mwamunga (Deceased) [2019] eKLR (F. Amin, J), In re Estate of Gurdial Kaur Sihra (Deceased) [2020] eKLR (Onyiego, J and In re Estate of Elizabeth Wanjiru Maina (Deceased) [2020] eKLR (Kimondo, J). That is what happened here. The respondent had a lesser interest, as a creditor or presumed creditor. She was way down the list of preference or entitlement to administration, but the court had discretion to appoint her. There was good reason for that appointment, as discussed in paragraph***[***21***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7682/eng%402024-06-28#arguments__para_21)***hereabove.”*** 1. Given the above finding that the Respondents were long-term occupants of the estate, their exclusion from the succession process as administrators would, in my view, prejudice their interest. 2. In the ultimate, it is my finding that the trial court correctly exercised its discretion by invoking Rule 73 of the Probate and Administration Rules to include the 1st Respondent as a co-administrator of the estate. The decision was to ensure transparency and the proper representation of all parties, as well as protection of the Respondent’s interests. 3. Having said so, I have reviewed the impugned ruling. Contrary to the Appellant’s averment, the trial court did not delve into the issue of ownership and trust. It focused on matters within the Probate Court's mandate. It merely recognized the Respondents' deceased father’s long residence on the land but fell short of determining the claim. Any further ownership claims by the Respondents regarding their father’s share were directed to a separate court, being the Environment and Land Court. Hence, the trial court did not overstep its jurisdictional mandate. 4. The upshot is that the court hereby finds that the appeal lacks merit and it is dismissed in its entirety. The decision of the trial court is affirmed. This being a family matter, there shall be no order as to costs. Dated, signed and delivered at Kakamega this 21st day of May 2026. **A. C. BETT** **JUDGE** **In the presence of:** Mr. Mondia for the Appellant No appearance for Mr. Onyancha for the Respondents Court Assistant: Polycap