https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10204

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **FAMILY APPEAL NO. E001 OF 2024** **IN THE MATTER OF THE ESTATE OF MANG'ENI NJATA (DECEASED)** **BETWEEN** **SIMON SIKUTA WANYONYI .................................................APPELLANT** **AND** **ELIJAH MATURU NAMUNABA .........................................RESPONDENT** ***(Arising from the Ruling of Hon. P. Y. Kulecho, Senior Resident Magistrate, delivered on 27th February 2024 in Webuye Principal Magistrate's Court Succession Cause No. 22 of 2017, formerly Bungoma High Court Succession Cause No. 10 of 2012)*** **JUDGMENT** 1. The appeal herein arises from the Ruling of Hon. P. Y. Kulecho, Senior Resident Magistrate, delivered at Webuye on 27th February 2024, in **Succession Cause No. 22 of 2017 (formerly Bungoma High Court Succession Cause No. 10 of 2012**), **In the Matter of the Estate of Mang'eni Njata (Deceased)**. 2. A Grant of Letters of Administration Intestate was issued to the Appellant on 7th March 2019 and confirmed on 31st July 2019. Under the resulting certificate, the estate, comprising **L.R. No. Ndivisi/Muchi/556**, measuring approximately six acres, was distributed among five beneficiaries. The Appellant took one acre, and the late William Wafula Namachanja was allotted two acres. 3. The Respondent Elijah Maturu Namunaba, being the son, sues as the legal and personal representative of the estate of the late William Wafula Namachanja who died on 9th July 2017. He acts pursuant to a limited grant of letters of administration *ad litem* issued to him by the Chief Magistrate's Court at Bungoma on 8th December 2022, and it is on the strength of that grant that he lodged the protest culminating in the Ruling now under appeal before this court. 4. By Summons dated 22nd June 2022, brought under **Section 76 of the Law of Succession Act** as read with **Rules 44, 49 and 73 of the Probate and Administration Rules**, the Respondent lodged a protest before the trial court. He sought, among other orders, a declaration that he be treated as a liability to the estate of Mang'eni Njata. He further sought that the certificate of confirmation of grant issued on 31st July 2019 be recalled, revoked, annulled, or rectified, so as to make him the beneficiary of the entire parcel **L.R. No. Ndivisi/Muchi/556**. 5. The trial court directed that the protest be determined by way of viva voce evidence. The Respondent testified as PW1 and adopted his witness statement. He stated that he administers the estate of William Wafula Namachanja, and that his late father had, before his death, purchased the entire six-acre parcel known as **L.R. No. Ndivisi/Muchi/556**. He further stated that the Appellant, though fully aware that the land belonged to Mang'eni Njata, had misrepresented to the trial court that he was a son of the deceased. PW2, David Wanjala, corroborated this account and testified further that Mang'eni Njata was not survived by any issue. 6. In support of his case, the Respondent produced a letter of administration, a certificate of death, and a search. He also produced five land sale agreements, variously dated between 25th August 1981 and 1st September 1985, a Chief's letter dated 6th February 2017, and a ruling in **P&A No. 1/2008**. He also tendered the ruling in **HCC P&A No. 323/2014**, the certificate of confirmation, and the proceedings in the **Land Disputes Tribunal Cause No. 6 of 2009**. Together, these documents formed the evidentiary foundation of his protest. 7. At the close of the Respondent's case, the Appellant testified and adopted his own statement. He described himself as an adopted son of the late Mang'eni Njata. He maintained that he was aware only of a two-acre portion having been purchased by the Respondent's late father, and not of the entire six acres asserted by the Respondent. He insisted that the Chief's letter on record correctly named William Wafula Namachanja as the buyer of only a portion, alongside four other beneficiaries. 8. In support of his case, the Appellant produced the Chief's letter dated 20th November 2012, the Chief's letter dated 6th February 2017, and the certificate of confirmation of grant dated 31st July 2019. He also produced the ruling in **Land Disputes Tribunal Cause No. 6 of 2008**. These documents, in his submission, corroborated his account that the Respondent's late father was entitled only to a two-acre share of the estate. 9. In its Ruling delivered on 27th February 2024, the trial court examined the five sale agreements produced by the Respondent. It found that Mang'eni Njata, who, according to the death certificate, died in 1982, was personally a party only to the agreement dated 2nd November 1981. The later agreement, dated 22nd March 1983, was found to have been executed not by the deceased but between the purchaser and representatives of the Balunda Clan, persons the court found had no authority to deal with the deceased's estate. 10. On this basis, the trial court held that the only credible evidence on record was that the deceased had, in his lifetime, sold a four-acre portion of the estate to the Respondent's late father. It further found that the proceedings and award in the Land Disputes Tribunal Cause, purporting to allocate six acres, had no bearing on the matter, there being no proof that the award had been adopted as an order of a court of competent jurisdiction. 11. The trial court accordingly declared the Respondent a liability to the estate to the extent of four acres. It directed that the Appellant and the remaining beneficiaries be at liberty to propose the redistribution of the residual two acres among themselves. It further annulled the certificate of confirmation of grant dated 31st July 2019, to pave the way for that redistribution. The summons was allowed, with no order as to costs. 12. Being aggrieved by the Ruling, the Appellant, acting in person, lodged a Memorandum of Appeal dated 11th March 2024. The Respondent later obtained leave of the court to file a Supplementary Record of Appeal, having pointed out that the original record filed by the self-represented Appellant was incomplete. The grounds of appeal are that the learned trial magistrate erred both in law and in fact; * 1. **by annulling a confirmation of grant after the long due process had been fully complied with;** 2. **by failing to appreciate that she lacked jurisdiction to revoke and/or annul the certificate of confirmation of grant, the annulment of grants falling under the jurisdiction of the Chief Magistrate as per the Magistrates Courts Act, No. 26 of 2015;** 3. **by failing to consider that the Respondent is only entitled to two acres, which his late father, William Wafula Namachanja, bought from Mang'eni Njata;** 4. **by disregarding the Appellant's response to the summons for annulment of grant; and** 5. **that the Ruling delivered has occasioned a miscarriage of justice.** 13. The Appellant prays that the appeal be allowed, that the certificate of confirmation of grant dated 31st July 2019 be maintained, and that the Ruling in **Webuye PMC MCSUCC No. 22 of 2017** be set aside, with costs to the Appellant. **Submissions** 1. By consent of the parties, and pursuant to directions given by this court, the appeal was canvassed by way of written submissions, the Appellant's filed in person, and the Respondent through his counsel. **Appellant's Submissions** 1. The Appellant, acting in person, contended that the decision of the trial court was erroneous, unjust, and contrary to the weight of the evidence adduced. He further submitted that the appeal raised substantive issues concerning the proper interpretation of both the law and the facts, warranting this court's intervention. 2. On the substance, the Appellant submitted that the certificate of confirmation of grant dated at Webuye on 11th July 2019 ought to be maintained, on two broad bases. First, the trial court erred in assessing the evidence, resulting in an incorrect ruling that did not reflect the proper weight of the evidence adduced at the hearing. Second, that he has suffered real prejudice from the erroneous ruling, and that the interests of justice demand that this be corrected on appeal, restoring the fairness of the original, long-settled distribution. 3. The Appellant advanced four specific limbs in support of the appeal. He submitted, first, that the proceedings before the trial court and the Ruling of the trial court were tainted by procedural irregularities that prejudiced his case. Secondly, the impugned decision was founded on an erroneous and misapplied reading of the applicable law as against the evidence on record. Thirdly, that setting aside the Ruling would facilitate a proper hearing and adjudication of the issues involved, in the interests of substantive justice. 4. Fourthly, the Appellant submitted that the learned trial magistrate totally failed to appreciate that she lacked jurisdiction to revoke or annul a certificate of confirmation of grant. That power, in his submission, is reserved to the Chief Magistrate under the **Magistrates' Courts Act, No. 26 of 2015**. 5. On the facts, he maintained that the only extent of land ever sold by Mang'eni Njata to the late William Wafula Namachanja was two acres, the extent already reflected in the certificate of confirmation of grant dated 31st July 2019, a document he submitted, which was arrived at only after due and lengthy process had been complied with, and ought not lightly to be disturbed. 6. The Appellant urged that the costs of the appeal and of the related proceedings be awarded to him. This, he submitted, was warranted both by the unjust nature of the trial court's decision and by the need to deter similar errors in future. In conclusion, he prayed that this court allows the appeal, maintain the certificate of confirmation of grant issued at Webuye on 11th July 2019, and set aside the Ruling in **Webuye PMC MCSUCC No. 22 of 2017 (Simon Sikuta Wanyonyi versus Elijah Maturu Namunaba),** with costs to the Appellant. **Respondent's Submissions** 1. Counsel for the Respondent submitted that the primary question for this Court's determination is whether the Respondent has demonstrated, on a balance of probabilities, that he sufficiently proved his objection before the trial court. Counsel further articulated four issues for determination: whether the Respondent, as the objector, possessed the capacity to raise the objection before the trial court; whether the trial court possessed jurisdiction to entertain such an objection; whether the Appellant concealed material facts from the trial court; and whether the family of the late William Wafula Namachanja is occupying the suit land. Counsel contended that each of these issues should be answered in favour of the Respondent. 2. Regarding capacity, counsel submitted that the Respondent produced, as an exhibit before the trial court, letters of administration demonstrating that he is the legal and personal representative of the estate of William Wafula Namachanja, deceased, the individual who purchased the suit land. This, the counsel argued, was adequate to confer upon him the capacity to lodge the objection. 3. On jurisdiction and locus standi, counsel contended that the **Magistrates' Courts Act No. 26 of 2015** authorizes the trial court to entertain an application for the revocation of a grant. Beyond jurisdiction properly so called, the question arises whether the Respondent possessed the *locus standi* to file the application, which the counsel affirmed he did. The counsel referenced **Section 76 of the Law of Succession Act** in its entirety and asserted that the key issue is whether the Respondent qualifies as an "interested party," thereby enabling him to apply for the revocation or annulment of the grant. 4. In support, counsel relied on **Ansazigambo Tinga & Another v Nicholas Patrice Tabuche [2019] eKLR**, in which the court, drawing on Black's Law Dictionary, described *locus standi* in essence as the right of a party to bring, or to be heard in, a given legal proceeding. Counsel further cited **Alfred Njau & 5 Others v City Council of Nairobi [1983] eKLR**, in which it was similarly held that *locus standi* denotes the right to appear before a court, and that a person lacking it has no right to be heard in the relevant proceeding. 5. Counsel then drew attention to further discussion in the **Ansazigambo Tinga decision**, noting that although a line of High Court authority had held that a respondent lacks *locus standi* to seek revocation of a grant unless he is an eligible administrator of the deceased's estate, that court identified a departure from this view in **Musa Nyaribari Gekone & 2 Others v Peter Miyienda & Another [2015] eKLR**. 6. Furthermore, counsel submitted that the Court of Appeal held that the phrase "any interested party" in the relevant provision, based on its plain meaning, is sufficiently broad to include any individual with a right or expectation in the estate. Counsel also highlighted the additional determination in that case, wherein the Court of Appeal found no merit in the contention that the trial judge had placed undue reliance on **Section 76 of the Law of Succession Act** in affirming the *locus standi* of the objector. 7. Furthermore, the Court of Appeal concurred that a purchaser's interest in a deceased's property is adequate to qualify an individual as an "interested party" with the standing to challenge a grant. Based on these precedents, counsel argued that the Respondent, asserting a purchaser's interest through his deceased father, similarly qualifies as an interested party with locus standi, thereby affirming that the trial court possessed the jurisdiction to entertain his objection. 8. On the issue of beneficial interest, counsel submitted that although the certificate of confirmation designates William Wafula Namachanja as a beneficiary, it understates his entitlement to two acres instead of six. Counsel clarified that the Respondent, although ranking lower in the hierarchy of entitlement to petition for representation than the Appellant, did not, for that reason, seek to revoke the original grant outright. 9. Instead, the Respondent sought annulment of the confirmed certificate, a more limited and measured remedy. Moreover, counsel contended that the Land Disputes Tribunal proceedings, together with the exhibited sale agreements, demonstrated that William Wafula Namachanja had purchased the entire parcel of land in dispute. 10. Counsel pointed out that the Appellant himself had witnessed the agreement dated 22nd March 1983, drawn in the Bukusu language and translated by an advocate of Bukusu ethnicity, and was therefore well aware that the estate was liable to William Wafula Namachanja to that extent. Counsel added that William Wafula Namachanja was already deceased by the time the certificate of confirmation was issued on 31st July 2019, having died on 9th July 2017. 11. Counsel reiterated the case of **Musa Nyaribari Gekone & 2 Others v Peter Miyienda & Another [2015] eKLR**, summarizing the facts as presented to the Court of Appeal in that matter and argued that, based on those circumstances, the Court of Appeal found no substantive merit in the allegation that the trial judge erred in revoking, nullifying, and cancelling the transfer and registration of the subject property under **Section 93 of the Law of Succession Act**. 12. The counsel submitted that, on equivalent reasoning, the certificate of confirmation herein ought similarly to be rectified, thereby acknowledging the true beneficial interests of the Respondent's late father, and by extension, the Respondent. 13. The Respondent's counsel argued that the Appellant, on Form P&A5, falsely declared himself as the son of the deceased, an assertion he was aware to be untrue, as he is, in fact, an adopted son. The counsel contended that this misrepresentation constituted a violation of **Section 76 of the Law of Succession Act**. 14. Furthermore, counsel submitted that the evidence on record compellingly demonstrated that the entire family of the late William Namachanja has been in possession of the six acres of the contested land, with the Appellant himself confirming in his testimony that the family has occupied the land since 1985. In conclusion, the counsel for the Respondent respectfully prays that the appeal be dismissed with costs and that the ruling of the trial court be upheld in its entirety. **Determination** 1. Having considered the record of appeal, the pleadings and evidence adduced before the trial court, the impugned Ruling, the rival written submissions filed by the parties as well as the authorities cited. This being a first appeal, this court is under a duty to re-evaluate and reassess the evidence on record, and to draw its own conclusions. 2. This was held in the case of **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123** 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 into account of particular circumstances or probabilities materially to estimate the evidence**.” 1. Having addressed my mind to the entirety of the matters at hand, it is my considered opinion that the following three issues arise for determination: 2. **whether the trial court had jurisdiction to entertain the objection resulting in annulment of the certificate of confirmation of grant dated 31st July 2019;** 3. **whether the learned trial magistrate disregarded the Appellant's response to the summons for revocation;** 4. **whether the evidence was properly evaluated in finding that the estate of the late William Wafula Namachanja is entitled to four and not two acres of L.R. No. Ndivisi/Muchi/556.** 5. On jurisdiction, the court in the famous case of **Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR,** held that: “**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 holds the opinion that it is without jurisdiction.”** 1. Further, **Section 7 of the Magistrates Court Act, No.** **26 of 2015** that confers jurisdiction to the Magistrate’s Courts in the handling of civil matters stipulates that**;** **A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—** **(a)twenty million shillings, where the court is presided over by a chief magistrate;** **(b)fifteen million shillings, where the court is presided over by a senior principal magistrate………..** **3) A magistrate's court shall have jurisdiction in proceedings of a civil nature concerning any of the following matters under African customary law—** **(a)land held under customary tenure;** **(b)marriage, divorce, maintenance or dowry;** **(c)seduction or pregnancy of an unmarried woman or girl;** **(d)enticement of, or adultery with a married person;** **(e)matters affecting status, and in particular the status of widows and children including guardianship, custody, adoption and legitimacy; and** **(f)intestate succession and administration of intestate estates, so far as they are not governed by any written law.** 1. In this instance, it is undisputed that the application for revocation was submitted within and adjudicated by the same court that originally issued and subsequently confirmed the grant. The Appellant asserts that the authority to revoke or annul a confirmed grant is vested solely in the Chief Magistrate under the **Magistrates Courts Act, No. 26 of 2015**. 2. However, not only has this want of jurisdiction not been elaborated upon and explained so that the court explicitly understands what it entails, but even assuming it is monetary jurisdiction, the want of it, if any, has not been corroborated by any evidence presented before either court regarding the gross value of the estate so as to establish that the matter exceeded the pecuniary jurisdiction of a Senior Resident Magistrate. 3. The Respondent's protest was brought under **Section 76 of the Law of Succession Act**, which provides, in relevant part, that **“a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, on application by any interested party or of its own motion,**” 1. Further, an application for revocation of a grant under **Section 76** is, in my view, is not a fresh suit requiring an independent determination of jurisdiction. It is an interlocutory step taken within the substantive succession cause. A court competent to receive the original petition, and to confirm the grant thereby issued, does not, without more, lose jurisdiction over subsequent applications properly brought within that same cause. 2. The mere existence of a class of magistrates with jurisdiction in succession matters does not, by itself, oust the jurisdiction of a court otherwise competent to entertain the cause from its inception. I therefore find no merit in this ground of appeal. 3. Regarding the second ground, the court observes that the ruling indicates that the trial magistrate explicitly considered the Appellant's testimony and the documents submitted through him as DW1, including the Chief's letters and the certificate of confirmation. 4. Therefore, the fact that the trial court, having examined this evidence, ultimately favoured the Respondent's case does not constitute a disregard of the Appellant's response. A verdict unfavourable to a party, reached after evaluating that party's evidence, does not imply a lack of consideration; rather, it is the natural outcome of the judicial assessment of conflicting evidence. Consequently, the first and fourth grounds of appeal are dismissed. 5. On the third ground, the record shows that five sale agreements were produced, drawn on dates between 25th August 1981 and 1st September 1985, and that the death certificate placed the death of Mang'eni Njata in 1982. Of the agreements examined by the trial court, the one dated 2nd November 1981 was executed between the deceased himself and the purchaser, William Wafula Namachanja. However, the one dated 22nd March 1983, drawn after the deceased's death, was executed between the purchaser and representatives of the Balunda Clan, persons who held no letters of administration or other lawful authority over the deceased's estate at the material time. 6. It is trite that a deceased person's estate is vested upon death and no person is authorized to deal with or dispose of that estate except through a grant of representation obtained in accordance with the law. Section 45 of the Law of Succession Act stipulates that; **“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”** 1. Therefore, the trial court correctly declined to give legal effect to the 1983 agreement executed by the clan representatives, as that agreement was entered into after the deceased's death by individuals lacking the authority to dispose of his property. 2. What remains is the agreement of 2nd November 1981, to which the deceased was personally a party. The trial court found evidence of a sale of four acres. This finding is corroborated by the Chief's letter of 6th February 2017, naming William Wafula Namachanja among the persons entitled to a share of the estate, and by the Appellant's own concession, both at trial and through his submissions on this appeal, that his late father had purchased at least a two-acre portion, a concession the trial court was entitled to treat as a floor rather than a ceiling on the Respondent's proven entitlement. 3. As for the proceedings and award in **Land Disputes Tribunal Cause No. 6 of 2008/2009**, purporting to allocate six acres to William Wafula Namachanja, I agree with the trial court that, in the absence of proof that the award was ever adopted as a judgment or order of a court of competent jurisdiction under the **Land Disputes Tribunals Act**, it could not by itself vary or determine rights in registered land, and was correctly disregarded. 4. Having re-evaluated this evidence, I find no basis upon which to depart from the trial court's assessment. The finding is not shown to be plainly wrong, nor to have proceeded upon a misapprehension of the evidence or a failure to consider material evidence on record. 5. Accordingly, I uphold the finding that the estate of the late William Wafula Namachanja is entitled to four acres, and not two acres, of **L.R. No. Ndivisi/Muchi/556**, together with the consequential direction that the certificate of confirmation of grant dated 31st July 2019 be annulled to allow for redistribution of the residual two acres. The third ground of appeal therefore fails. 6. Having found no merit in the first four grounds of appeal, it follows that the Appellant has not established that the Ruling of the trial court occasioned any miscarriage of justice. The fifth ground of appeal accordingly fails. For completeness, I note the Respondent's submission that the certificate of confirmation dated 31st July 2019 was in any event irregular, in that it named William Wafula Namachanja as a beneficiary notwithstanding that he had died on 9th July 2017, shortly before its issuance. 7. Accordingly, this court finds no merit in the appeal dated 11th March 2024 and it is hereby ordered that: * 1. **The appeal be and is hereby dismissed.** 2. **The Ruling of the trial court delivered on 27th February 2024 be and is hereby upheld.** 3. **The certificate of confirmation of grant dated 31st July 2019 shall stand annulled, and the direction of the trial court for redistribution of the residual two-acre portion among the Appellant and the remaining beneficiaries of the estate of Mang'eni Njata (deceased) shall be given effect to.** 4. **The costs of this appeal shall be in the cause.** **Read Dated and Signed at BUNGOMA on 9th July 2026** **E. OMINDE** **JUDGE**