https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10927

In re Estate of Malasa (Deceased) (Succession Appeal E024 of 2024) [2026] KEHC 10927 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10927 (KLR) Republic of Kenya In the High Court at Kakamega Succession Appeal E024 of 2024 S Mbungi, J July 16, 2026 Between Stephen Miti Lumbasi Appellant and Philip Lumbasi Petitioner (An appeal arising from the judgment of Hon. ANGELINE ADAWO, CHIEF MAGISTRATE, Kakamega CM SUCC NO 845 OF 2017) Judgment 1.The matter refers to the estate of Kiliopa Muyale Malasa alias Muyale Malasa, who died on 10th May 1991. The petitioner applied for grants of letters of administration intestate for his estate on 4/10/2017, which were issued by the court on 8/9/2020. 2.The list of beneficiaries from the chief’s letter dated 27/09/2017 was Philip Lumbasi, Michael Ayumba Lumbasi, Josephat Lumbasi, Miti Lumbasi, while the parcel in Uganda was shared by three sons, being Michael Ayumba, Joseph Lumbasi and Miti Lumbasi. 3.The deceased had left behind estate land S. KABRAS/LUKUME/427. 4.The petitioner filed summons for confirmation of the grant on 1/4/2021; however, the objector, Stephen Miti, filed notice of objection to the summons denying the existence of land in Uganda and the sub-divisions of the land in Kenya 5.The matter proceeded by way of viva voce evidence where the petitioner called one witness, including himself, while the objector had two witnesses, including himself. 6.The trial court, upon analysing the evidence and testimonies of the witnesses, found that the objector was not being truthful and dismissed the objection raised. The court held that the parties had consented to the mode of distribution and confirmed the grant and the mode of distribution, dismissing the notice of objection. 7.The parties filed summons for confirmation of grant and consent on the mode of distribution on 4th October 2017 8.The appellant being dissatisfied with the decision of the trial court based on the following grounds;a.That the learned magistrate erred in rigidly fettering her descretion and failing to address an apparent injustice of double payment which was vividly brought to her attention.b.That the learned magistrate erred and occasioned a miscarriage of justice in failing to allow the laid down grounds of objections filed by the objector in the previous succession.c.That the learned magistrate failed to canvass the cardinal principle of law that had the court been apprised of the interning facts, the verdict of judgment would have been differentd.That the learned magistrate erred in law and occasioned a miscarriage of justice when she held that the appellant/objector had been heard and yet his grounds had not been observed nor considered in any mannere.That the learned magistrate erred in failing to address issues concerning the mode of distribution of the deceased estate as per the family members and instead he followed the consent filed by the petitioner alone.f.That the learned magistrate erred in law by failing to consider in full the Acts and Laws of the Succession Act to distribute the deceased estate amongst his family membersg.That the learned magistrate erred in making findings against the weight of the existing evidence by the appellant/ Objector. Evidence in brief 9.PW1 was Stephen Miti Lumbasi. He adopted his witness statement dated 24/8/2021 as his evidence in chief. During cross-examination, he confirmed that the deceased had three wives, with Philip’s mother being the 1st wife, his mother the 3rd wife and Agnes was the 2nd wife. He confirmed that none of his brothers were buried on the parcel of land, while the 2nd wife to the deceased, who is still alive, lives in Uganda. 10.On re-examination, he confirms that Agnes was the 2nd wife to the deceased and that the deceased got her a parcel of land while his mother was buried in Lukhome 427 and that it was only after he became an adult that he learnt that he did not have any land. 11.PW2 was Alphonse Musemi. He adopted his witness statement as his evidence in chief. During cross-examination, he confirmed that the 2nd wife of the deceased was Agnes, who is still alive and lives in Uganda. He averred that two of the deceased sons were buried in Uganda and some of Philip’s brothers live in Uganda. 12.At re-examination, he states that he was the chairman of the extended family and when they tried to divide the deceased land in Uganda, they discovered it was in the name of Agnes, and that is why they divided the land in Lukume. 13.DW1 was Philip Lumbasi. He equally adopted his witness statement as evidence in chief. He produced his list of documents No. 1- No. 4 as DE 1- DE 4. 14.During cross-examination, he identified the petitioner as Miti, his last born brother. He stated that their stepmother raised him. He claimed that they were given land being No. 427, which had no title deed, same as the land in Uganda which do not have title deeds. He claimed that the petitioner lived in Uganda, same as the deceased's other sons. 15.DW2 was Samson Opata; he adopted his witness statement as evidence in chief. 16.During cross-examination, he confirmed that the petitioner’s brother was his brother. He claimed that the deceased, his brother, lived on that land in Uganda and he wanted the land to be distributed among his children although there were no land documents/ title to that land and that his father distributed the land among his sons. 17.DW3 was Agnes Makokha; she adopted her witness statement as evidence in chief. 18.During cross-examination, she confirmed that she lived with the petitioner and educated him. He stated that his father and mother were buried in the land. She confirmed that the deceased died having two parcels of land and that when they went to court they won the case and each child was given 6 acres of land, although she claimed that the deceased did not buy any land in Kenya. Appellant’s submissions. 19.In his submissions, the appellant asserts that the deceased estate, which comprised S/KABRAS/LUKUME/427, measured 3.2 ha, which is 7.2 acres, and at the time of his demise he was survived by 7 children and three wives. The children were;a.Philip Lumbasi- sonb.Michael Anyuma Lumbasi- son (deceased)c.Josephat Lumbasi – sond.Stephen Miti Lumbasi-sone.Selfa Weyanga- daughter (deceased)f.Sarah Naliaka- daughter (deceased)a.Soita Peter Lumbasi-son (deceased) 20.He identified the deceased wives as Esther Ikungu, Repa Kelementina Abunyasa and Agnes Makokha 21.According to the petitioner, only three of his sons are still alive, being Philip Lumbasi, Josephat Lumbasi and Stephen Miti Lumbasi. He asserts that the said land in Uganda was never owned by Kiliopa Munyale but was owned by Agnes Makokha. he opined that the deceased land, being 7.2 acres, ought to be shared equally and each house was to get 2.4 acres. 22.He states that the respondent was awarded the whole land as per the consent and mode of distribution. He questioned how the land was given to Maulid Wanjala Mulindi, the assistant chief of the area, and fears that they would soon be evicted. 23.He appeals that the court allows his mode of distribution and allow that the deceased surviving sons, being Philip Lumbasi, Stephen Miti Lumbasi and Josephat Lumbasi, each have equal distribution of the land being 2.4 Ha. 24.According to the appellant, the statement dated 21/2/2022 filed on `0/5/22 was not signed by Agnes Muyale and claimed that the signatures were not alike. He claimed that the deceased had only one parcel of land and the parties have to get their equal shares and prays that the parties not use the letter dated 10th December 20003 because the aggrieved party was chased by Agnes from Uganda he relied on the letter dated 8th December 2003. Analysis and determination 25.This being a first appeal, this court is obligated to re-evaluate and re-analyse the evidence that was placed before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 26.The duty of a first appellate court was stated by the Court of Appeal in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others, where the court held:“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 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.” 27.I have carefully considered the memorandum of appeal, the proceedings before the trial court, the impugned judgment and the appellant's submissions. In my view, the appeal raises one key issue for determination which is whether the learned trial magistrate erred in confirming the grant of letters of administration and dismissing the appellant's objection. 28.According to the appellant, the deceased never left any land in Uganda and that the trial magistrate therefore erred in considering the alleged Uganda property while confirming the grant. The appellant further contends that the trial court failed to consider his objection and consequently allowed unfair mode of distribution of the estate. 29.From the records provided, I see that the learned trial magistrate directed the matter to proceed viva voce evidence after the appellant filed their protest on the mode of distribution. Both parties were allowed to call their witnesses and to challenge the evidence adduced by the opposing side through cross-examination. The trial court thereafter evaluated the evidence before arriving at its findings. 30.According to the appellant, the deceased had only one parcel of land in Kenya and that the land in Uganda belonged to Agnes Makokha, the 2nd wife. His witness, PW2 Alphonse Musemi, similarly testified that when the family attempted to subdivide the Uganda property, they discovered that it was registered in Agnes Makokha's name. It was therefore the appellant's position that the deceased's estate available for distribution consisted solely of parcel S/Kabras/Lukume/427. 31.On the other hand, the respondent and his witnesses testified that the deceased had settled part of his family in Uganda during his lifetime. In his testimony, he did admit that there were no land titles on the land in Uganda and he was very categorical that the deceased and his family occupied and did utilize that land for many years and that the deceased had distributed it amongst some of his sons before his demise. 32.I do note that the evidence before the trial court therefore disclosed two differing versions of the deceased's lands. It was therefore upon the trial court, who had the advantage of seeing and hearing the witnesses testify, to assess their credibility and determine which version was more probable. Having undertaken that exercise, the learned magistrate found that the appellant's evidence was not credible and accepted the respondent's account. 33.This court has carefully re-evaluated the evidence on record. I am unable to find any basis for interfering with the trial court's findings. The appellant has not demonstrated that the learned magistrate ignored any material evidence, misapprehended the evidence placed before the court or reached findings that were unsupported by the record. 34.The mere fact that the appellant disagrees with the conclusions reached by the trial court is not, of itself, sufficient ground for appellate interference. 35.The appellant further contended that the trial court failed to consider his objection. I have examined the judgment by Hon. Odawo; however, I do not agree with the Appellant. The judgment clearly identifies the issues raised by the appellant, summarizes the evidence tendered by both parties and gives reasons why the objection was found to be without merit. The fact that the appellant's case was ultimately rejected does not mean that it was ignored. 36.The appellant's argument that the confirmation of the grant ought to have been dismissed merely because documentary evidence of ownership of the Uganda land was not produced is not ideal. The issue before the trial court was not limited to proof of registered ownership. Rather, the court was called upon to determine, on the basis of the evidence presented, whether the proposed mode of distribution reflected the circumstances of the deceased's family. The trial court was entitled to evaluate both documentary and oral evidence in arriving at its conclusion. 37.The appellant also urged this court to order that parcel S/Kabras/Lukume/427 be shared equally amongst the three houses of the deceased. However, apart from asserting that the deceased had three wives, the appellant did not demonstrate how the proposed mode of distribution accords with the provisions of the Law of Succession Act or why the trial court's distribution ought to be disturbed. No sufficient basis has been laid before this court to warrant interference with the exercise of discretion by the trial court. 38.It is also noteworthy that the learned trial magistrate found, as a matter of fact, that the parties had agreed on the mode of distribution before the objection was raised. The trial court considered the totality of the evidence and remained satisfied that the objection lacked merit. 39.Having independently re-evaluated the entire record, I am satisfied that the learned trial magistrate properly appreciated the issues before the court, considered the evidence tendered by all the parties, applied the correct legal principles and reached a conclusion that was supported by the evidence. The appellant has failed to demonstrate any error of law or fact that would justify interference by this court. Consequently, I find that the appeal is devoid of merit. 40.In the result, the appeal is hereby dismissed.a.The judgment of the subordinate court confirming the grant of letters of administration intestate is hereby upheld.b.Considering this is a family dispute, each party shall bear his own costs of the appeal.c.Orders accordingly.d.Right of Appeal 30 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 16TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zildah/VelmaAppellant present.Respondent absent.Court Assistant to upload the Judgment on the CTS.