Siongo v Njogu & another (Land Case Appeal E046 of 2024) [2026] KEELC 3465 (KLR) (28 May 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **ELC L APPEAL NO. E046 OF 2024** **TABITAH WAMBUI SIONGO ………................................ APPELLANT** **VERSUS** **JOHN GITHUA NJOGU …….…..…………………….1ST RESPONDENT** **LUCY KABURA GATHIKA ……….……………….. 2ND RESPONDENT** *(Being an Appeal against the Ruling of Hon. A. N. Makau in Ngong’ MCELC Case No. E027 of 2022 delivered on 9th October 2024)* **JUDGMENT** 1. This appeal arises from the ruling and order of the learned trial magistrate dated 9th October 2024 dismissing the Appellants application to review the Ruling delivered on 26th April 2024. The appeal challenges the decision of the learned magistrate which upheld a Preliminary Objection and dismissed the Appellant’s suit on the grounds that the Appellant lacked capacity to institute proceedings relating to the suit properties. 2. Vide Memorandum of Appeal dated 5th November 2024 the Appellant avers that the Learned Magistrate erred in dismissing the suit without going through the Court’s record and holding that the Appellant did not have Letters of administration yet the same was filed and available in the court record. That this holding contradicted earlier findings made in the interlocutory proceedings. The Appellant further faulted the learned magistrate for determining contested factual issues through a preliminary objection. 3. The appeal was canvassed by way of written submissions. 4. Counsel for theAppellant submitted that the Appellant, the late Ibrahim Siongo Musa’s wife, filed a suit in the Ngong Magistrates’ Court Case No. E027 of 2022 seeking to protect parcels Ngong/Ngong/46798 and Ngong/Ngong/46803 from alleged fraudulent transfers by the Respondents. She contended that from the inception of the suit, the issue of her locus standi was raised by the Respondents, who argued that she lacked legal capacity to sue on behalf of her late husband’s estate as she had not obtained letters of administration. 5. She responded to this by filing a further affidavit dated 15th September 2022 annexing Letters of Administration in respect of her late husband’s estate. The lower court thereafter granted interim injunctive orders on 30th November 2022, which, according to the Appellant, demonstrated that the issue of locus standi had been sufficiently addressed at that stage. 6. However, the 2nd Respondent later raised a Preliminary Objection dated 4th October 2023 on the same issue of locus standi. The Appellant opposed the objection vide a Replying Affidavit dated 30th November 2023, wherein she reiterated that she had obtained a confirmed grant in respect of her husband’s estate and annexed the same to the affidavit. Counsel argued that the said grant formed part of the court record, was served upon the Respondents and was relied upon in submissions. 7. In the ruling delivered on 26th April 2024, the trial court dismissed the Appellant’s suit on grounds that the Appellant lacked capacity to sue on behalf of her late husband’s estate. Counsel argued that the court overlooked material documents already on record, particularly the confirmed grant annexed to the Replying Affidavit of 30th November 2023. 8. Following this dismissal, the Appellant filed an application for review dated 4th May 2024 on the ground that there was an error apparent on the face of the record, namely the court’s failure to appreciate that the Letters of Administration had been filed and annexed. The application for review was also dismissed on 9th October 2024. 9. Counsel claims that this Ruling contained contradictory findings, because on one hand, the court stated that the Appellant had not demonstrated that she was the legal representative of her late husband’s estate and that the grant was not on record, while on the other hand, the court had appreciated the Appellant’s status as administrator in the earlier ruling. 10. Counsel argued that the contradictory findings rendered the ruling inconsistent and legally untenable. Reliance was placed on the decisions in **Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others [2020] eKLR** on the principles governing review for error apparent on the face of the record; **Benson Ndoli Gwage v Lakbir Dhillion [2019] KEELRC 2541 (KLR)** on the principle that a party cannot approbate and reprobate simultaneously; and **West FM Media v JMK [2023] KEHC 692 (KLR)** that courts ought not issue contradictory decisions. Counsel further submitted that the suit properties had already devolved to her pursuant to a confirmed grant and therefore ceased to constitute estate property. In support of that position, reliance was placed on **In re Estate of Ernest Kerry Komo (Deceased) [2016] eKLR**. 11. It was the Appellants case that the lower court failed to consider material evidence on record, misapprehended the law relating to locus standi and review, and rendered contradictory findings that occasioned grave injustice to the Appellant. Thus, counsel urged the court to set aside the ruling dated 9th October 2024, and find that the Appellant had demonstrated sufficient legal capacity to institute the suit. 12. Counsel for the 2nd Respondentopposing the Appeal submitted that the Appellant did not have capacity to institute the suit because she did not have grant of letters of administration and any dealings were an act of intermeddling citing **Section 3, 45 and 82(a) of the Law of Succession Act**. That the Appellant was not an administrator of the estate of the late Musa Tintemei Pasha, who was the registered proprietor of the suit properties prior to their transfer to the Respondents. And that although the Appellant held letters of administration for the estate of her late husband, Ibrahim Siongo Musa, the suit properties had never been transmitted to Ibrahim’s estate and therefore did not form part of the estate of the late Ibrahim. That only the administrators of Musa Tintemei Pasha’s estate could lawfully challenge the Respondents’ titles. 13. Counsel maintained that the Respondents held valid titles protected under **Section 26 of the Land Registration Act** and that only the administrators of Musa Tintemei Pasha’s estate could lawfully challenge the alleged transfers and seek cancellation of the titles. He argued that the lower Court was therefore right in dismissing the suit in its Ruling in April 2024 as well as the Application for review in the 9th October 2024 Ruling. And this Appeal should also be dismissed. 14. In response to this argument, it was the submission of counsel for the Appellant that the fact that the land was not registered in the name of the late Ibrahim does not the fact that the property had been devolved to him by way of a confirmed grant which had not been revoked. Hence his widow, the Appellant was properly suited to file the suit on behalf of his estate. 15. The sole issue for determination is whether the appeal is merited. 16. This being an appeal on an application, this court is on a similar footing with the court of first instance which determined the matter on the basis of the affidavit evidence. I am also reminded that an appellate Court would not normally interfere with exercise of the discretion of the lower court unless it has not been exercised judiciously. As to what the term “discretion” means the Court in ***The Supreme Court of Uganda, in Kiriisa v Attorney-General and Another [1990-1994] EA 258*** stated that: “Discretion simply means the faculty of deciding or determining in accordance with circumstances and what seems just, fair, right, equitable and reasonable in those circumstances.” This discretion being wide, the main issue before this court is for the court to do justice to the parties, and in so doing the court will not impose conditions on itself to fetter the wide discretion given to it by the rules of procedure. This court should however ask itself under what conditions, if any, it ought to set aside the Judgement and such conditions, if appropriate, must be just to both the Appellants and the 1st Respondent 17. The suit properties were originally registered in the name of the Appellant’s deceased father-in-law. The Appellant’s late husband had been appointed as a co-administrator of the estate of the deceased registered owner. The estate was administered and the Appellants late husband named as beneficiary of the suit property. 18. After the death of her husband the Appellant instituted proceedings before the subordinate court in the year 2022 seeking, among other reliefs, cancellation of titles allegedly fraudulently transferred to the Respondents. Contemporaneously with the suit, the Appellant filed an application seeking injunctive orders restraining dealings with the suit properties. 19. In response thereto, the 1st Respondent filed a Replying Affidavit challenging the Appellant’s locus standi and asserting that the Appellant had not demonstrated that she held letters of administration. The Appellant thereafter filed a Further Affidavit attaching a rectified certificate of confirmation of grant to the estate of her deceased father-in-law which confirmed that her late husband had been allocated a half-acre share out of the suit properties. She also attached documents evidencing that following the death of her husband, succession proceedings had been undertaken in respect of his estate culminating in a confirmed grant issued in her favour on 10th October 2016. 20. On 4th October 2023, the 2nd Respondent raised a Preliminary Objection contending that given that the deceased father-in-law remained the registered owner of the suit properties the Appellants grant in respect of her husbands estate did not authorize her to file the suit. The Preliminary Objection was upheld. 21. Undeterred the Appellant filed an application for review dated 14th May 2024, pointing out that she had letters of administration to her late husbands estate which by then included the suit property which had been lawfully devolved to him in the Succession matter. She based the Review on the grounds that the Magistrate erred on the face of the record. 22. In the **Ruling** dated **9th October 2024** the Magistrate stated: “*… at the time this Court made its Ruling, from the record the Plaintiff did not demonstrate she was the legal representative of the estate of her late husband… Upon perusal of the said record as averred by the plaintiff that she had filed a replying affidavit and attached copies of letters of grant, the same is not on record and the court cannot be convinced by what is alleged without proof. As such, the Plaintiff’s application fails as there is no proof of any error made by the court… the legal administration of her late husband’s estate ought to have been supported by letters of administration which have not been availed in Court at the time of this Ruling… As such, the application fails and is dismissed with costs…”* 23. This finding is contrary to the further affidavit filed by the Appellant in response to the Replying Affidavit filed by the Respondent in response to the injunction application. This affidavit together with the annexed grant documents were indeed filed and form part of the Court record. They were filed even before the determination of the injunction application which was successful. The Learned Magistrate therefore erred in finding that there was no proof that the Appellant had obtained representation to the Estate of the late Ibrahim Siongo Musa. 24. Having established that material documents touching on the Appellant’s locus standi were already on record but were not taken into account, this Court is satisfied that there existed an error apparent on the face of the record within the meaning of Order 45 of the Civil Procedure Rules, thereby warranting review of the decision dated 26th April 2024. 25. **Under Section 78 of the Civil Procedure A**ct, this Court, sitting as a first appellate court, is vested with power to determine a case finally, to reverse or vary the decree or order appealed against, and to make such orders as the circumstances of the case may require. Further, Sections 1A and 1B of the said Act obligate the Court to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. 26. In respect of the Ruling dated 26th April 2024 which upheld the Preliminary Objection suffice it to say that it delved into many factual matters which should not have been addressed in a Preliminary Objection. Whether the rectified certificate of confirmation of grant devolved identifiable interests to the Appellant’s late husband, whether the Appellant held a confirmed grant in respect of her husband’s estate, whether the suit was instituted on behalf of the estate of the deceased registered owner or on behalf of the estate of a beneficiary whose beneficial interest had already crystallized in the absence of formal transmission. Indeed the question of whether or not transmission had been formally completed was itself a matter requiring evidence and substantive hearing. The court is of the view that these matters could not properly be determined without interrogating evidence. The Court is therefore satisfied that the Appellant demonstrated sufficient locus standi to sustain the proceedings at least to the extent necessary to warrant a full hearing on merits. As a holder of a confirmed grant in respect of her husbands estate, the Appellant had a right to be heard. 27. In the circumstances, remitting the matter back to the trial court for rehearing of the review application would unnecessarily prolong litigation notwithstanding that the record before this Court sufficiently demonstrates the error complained of. The issues need to be fully ventilated and a determination made on merit. 28. The Court therefore makes the following orders: 29. **The appeal is hereby allowed.** 30. **The ruling and order of the subordinate court delivered on 26th April 2024 together with the subsequent ruling dated 9th October 2024 dismissing the Appellant’s application for review are hereby set aside in their entirety.** 31. **The Preliminary Objection dated 4th October 2023 is hereby dismissed.** 32. **The Appellant’s suit before the subordinate court is hereby reinstated for hearing and determination on merits before a different magistrate of competent jurisdiction.** 33. **The interlocutory injunctive orders earlier issued on 30th November 2022 in favour of the Appellant shall remain in force pending hearing and determination of the suit unless otherwise varied by the trial court.** 34. **Costs of this appeal are awarded to the Appellant.** **Dated, Signed and Delivered virtually at Kajiado this 28th day of May 2026.** **JUDY OMANGE** **JUDGE.** **IN THE PRESENCE OF:** Mr. Ochieng for the Appellant. Mr. Sagini for the 2nd Respondent. Peter – Court Assistant.