https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10191

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT BUNGOMA** **SUCCESSION APPEAL NO. E006 OF 2023** **IN THE MATTER OF THE ESTATE OF RAPHAEL WEKESA WELEKHE - DECEASED** **BETWEEN** **THOMAS WAMATILA WEKESA...........................................APPELLANT** **AND** **GIBSON WANYONYI MAKOKHA** **(On behalf of the Estate of the late Susan Nasambu Ndege - Deceased) ..……………………..RESPONDENT** (***Being an appeal from the Ruling of the Chief Magistrate Hon. C. Maundu delivered on the 19th day of October 2023, in Bungoma Succession Cause No. 218 of 2017***) **JUDGMENT** 1. This judgement is to the estate of the late Raphael Wekesa Welekhe, who died intestate on 11th July 2008. The appellant, a son of the deceased, filed a petition with the trial court seeking for grant of Letters of Administration intestate over the estate. Subsequently, a limited grant of Letters of Administration *Ad Litem* was issued to the respondent, Gibson Wanyonyi Makokha, on 16th May 2017. He held this grant as the legal and personal representative of the estate of the late Susana Nasambu Ndege to safeguard his mother's purported interest in the estate. 2. Prior to the grant's confirmation, the Respondent submitted an Affidavit of Protest on 12th February 2018, sworn on his own behalf and on behalf of his late mother's estate. He asserted a purchaser's interest in four acres of land that form part of the estate. He contended that his mother had acquired the four acres in two separate transactions: one acre purchased directly from the deceased, and three acres bought from Lukas Wamalwa Welekhe, the deceased's brother, who had previously acquired that portion from the deceased. He further stated that, following his mother's demise, the Appellant, his maternal uncle, encroached upon and trespassed onto the land occupied by his mother's family for over fifteen years, with the intent of disinheriting her beneficiaries. 3. The Appellant responded to the protest through a Replying Affidavit. He contended that the Protestor had conflated two separate parcels of land, and that the sale agreements cited did not bear his mother's signature nor his own. Additionally, he indicated that the alleged purchasers had never obtained the necessary consent from the Land Control Board, which is a mandatory requirement for any legitimate transaction involving agricultural land. Consequently, he maintained that the Respondent lacked a legal foundation to claim any part of the estate; therefore, the protest should be dismissed. 4. At the hearing before the trial court, the Respondent called two witnesses in support of the protest. PW-1, Gibson Wanyonyi Makokha, testified that the 3 acres had first been sold to Lukas Wamalwa Welekhe, the deceased's brother, who in turn sold the same portion to the Protestor's mother. He added that the deceased had also sold a further 1 acre directly to the Protestor's mother, bringing the total to 4 acres. However, under cross-examination, he conceded that he was not in occupation of the land and that Lukas had predeceased his own mother. 5. PW-2, Lukas Wamalwa Wamalwa, testified that he had purchased 3 acres from the deceased in 1981 and sold the same to Susan Nasambu in 1987. He further stated that when the deceased later sought to sell an additional acre, he lacked the financial means to purchase it and instead introduced Susan, who acquired that extra acre directly from the deceased. Under cross-examination, he confirmed that the deceased's sons are now occupying Susan's portion, having demolished the house that was formerly situated there, and verified that he had fully compensated the deceased for the parcel he obtained. 6. DW-1, Thomas Wekesa, the Appellant herein, testified that he had not been involved in the sale of the land. He said neither him nor his father had signed any of the agreements relied upon by the Protestor. He maintained that his father's parcel was known as **E. Bukusu/N. Sang'alo/1360,** not **E. Bukusu/N. Sang'alo/1361**, the parcel number referred to in some of the documents produced by the Protestor. This discrepancy, he asserted, went to the very root of the Respondent's claim. 7. Upon examining the evidence and the submissions presented by the respective parties, the trial court, in its Ruling issued on 19th October 2023, determined that there was substantial evidence indicating that the late Susana Nasambu had acquired land from the deceased as well as an additional portion from Lukas Wamalwa. The court found no record to suggest otherwise. Concerning the discrepancy in parcel numbers, the trial court regarded it as immaterial, reasoning that the application for Land Control Board consent on record, in which Lukas Wamalwa sought to transfer parcel **No. E. Bukusu/N. Sang'alo/1360 to Susan Nasambu,** referred to a completely different parcel and was not part of the deceased's estate. 8. The trial court accordingly determined that the late Susana Nasambu Ndege was a beneficiary of the estate of the late Raphael Wekesa Welekhe and entitled to a four-acre portion of it. It further concluded that the Respondent was entitled to represent her estate for this purpose. The Appellant, in the capacity of petitioner, was instructed to include the Respondent as a beneficiary in the application for confirmation of the grant. Each party was ordered to bear its own costs incurred during the proceedings before the trial court. 9. Aggrieved by the Ruling and the orders arising from it, the Appellant lodged the present appeal by way of a Memorandum of Appeal dated 27th July, 2023, setting out three grounds of appeal; 10. **That the learned trial magistrate erred in law and fact by ignoring evidence on record, and thus arrived at a wrong conclusion;** 11. **That the learned trial magistrate erred in law and fact when he stated that the different parcel numbers in the land sale agreements were immaterial, and thus arrived at a wrong conclusion; and** 12. **That the learned trial magistrate erred in law and fact by proceeding with the matter without dealing with the issue of jurisdiction that was raised in the Appellant's submission and thus arrived at a wrong conclusion.** 13. The Appellant prays that the appeal be allowed; that this Honourable Court set aside the Ruling and orders of the lower court; and that, of its own accord, the Court examine the evidence on record and reach a conclusion as it deems fit. He further prays that the costs of the lower court and for this appeal be awarded to him. **Submissions** 1. The appeal, as directed by this Court, was canvassed by way of written submissions filed on behalf of the parties. **Appellant's Submissions** 1. The Counsel for the Appellant submitted that the Appellant serves as the administrator of the estate of the late Raphael Wekesa Welekhe, who passed away on 11th July 2001. Furthermore, prior to the confirmation of the grant, the Respondent submitted the Affidavit of Protest on pages 24 to 26 of the record, which alleged that the late Susan Nasambu Ndege had acquired four acres of the land forming part of the estate. 2. Counsel then addressed the duty of a first appellate court, submitting that such a court is mandated to re-evaluate the evidence afresh and arrive at its own independent conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. Counsel submitted that the duty exists to guarantee a litigant a full, fair, and independent consideration of the evidence at the appellate stage. Counsel relied on **Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR)**, in which this duty was restated, the same having been first articulated in the case of **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123** and **Peters v Sunday Post Limited [1958] EA 424**, in which the duty. 3. Counsel subsequently addressed ground 3 of the appeal, which he recognized as the threshold matter upon which the appeal should be considered: that the trial magistrate committed an error in law and fact by proceeding to hear the protest without first resolving the objection to jurisdiction raised in the Appellant's submissions before the trial court. Counsel argued that this ground was dispositive and ought to have been appropriately considered prior to any other grounds of appeal. 4. Counsel submitted that **Article 165(5) of the Constitution** delineates the jurisdiction of the High Court in unequivocal terms, explicitly excluding from its ambit matters reserved for courts of equal standing to the High Court, including issues pertaining to the environment and land. Counsel clarified that this provision deprives the High Court of jurisdiction over matters within the jurisdiction of the courts envisaged under **Article 162(2) of the Constitution**, which include disputes concerning the use, occupation, and ownership of land. 5. Counsel further cited **Article 162(2) of the Constitution**, which envisions the establishment of courts of the status of the High Court to hear and determine disputes relating to, among other matters, the environment, as well as the use, occupation, and title of land. Counsel submitted that Parliament, in compliance with this constitutional mandate, enacted the **Environment and Land Court Act, No. 19 of 2011**, thereby establishing the Environment and Land Court. 6. Counsel explained that **Section 13 of that Act**, read together with **Article 162(2)(b)**, confers upon that court both original and appellate jurisdiction over disputes pertaining to environmental planning and protection, land use, land titles, land tenure, boundaries, compulsory land acquisition, land administration and management, along with instruments that grant enforceable interests in land, among other land-related disputes. 7. Counsel submitted that the property in question is registered land and that its sale constitutes the conveyance of title from the seller to the buyer. The Appellant, in his capacity as administrator of the estate, firmly contested this. He argued that, by directing that the Respondent be included as a beneficiary based on an alleged sale, the trial court was effectively called upon to determine a question of ownership between the estate and the Respondent. 8. Counsel further contended that this places the dispute at the very core of title and ownership, thereby bringing it within the scope of **Article 162(2) of the Constitution**. Reliance was placed on the authoritative case **of In re Estate of Prisca Ong'ayo Nande (Deceased) (2020) eKLR**, in which comparable reasoning was adopted. 9. Counsel further submitted that, because the land is registered, its registration and transfer are governed by the **Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012**, both of which contain comprehensive provisions on the sale, transfer, and registration of registered land. Counsel contended that determining whether a valid sale of registered land has occurred, in accordance with this legislation, falls outside the jurisdiction of a succession court and instead lies exclusively within the authority of the Environment and Land Court. 10. Counsel referred to sections **2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act**, clarifying that these provisions define "court" as the Environment and Land Court for the purposes of these statutes and grant that court jurisdiction to hear and resolve land-related disputes arising thereunder. 11. Counsel submitted that these provisions imply that any dispute concerning the sale, registration, or transfer of land falls within the jurisdiction of the Environment and Land Court, and that every reference to "court" in the **Land Registration Act** and the **Land Act** must be understood as a reference to that court, or to a subordinate court specifically conferred with jurisdiction over the processes governed by those statutes. It followed, Counsel submitted, that the succession court had no mandate to adjudicate such questions, however incidentally they arose during confirmation proceedings. 12. Counsel further argued that jurisdiction is fundamental to a court's authority, and a court that claims to act without it violates the rule of law and the principle of legality. Reliance was placed on the Court of Appeal's decision in **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR**, where the Court highlighted that jurisdiction underpins judicial legitimacy: in its absence, a court is unable to advance any further and must cease proceedings once it determines that it lacks the necessary authority. 13. Counsel further relied upon the ruling of the Court of Appeal in **Dhirajlal J. Shah & Another v Vijay Amritlal Shethia [2018] eKLR.** The court, while adjudicating a tenancy dispute, noted that the judge whose order was contested had, in fact, been sitting as a judge of the Environment and Land Court. 14. The counsel emphasized that this observation was made in the context of **Article 162(2)(b) of the Constitution**, which mandates that Parliament establish courts with the status of the High Court to adjudicate disputes related to environmental issues, as well as the use, occupation, and ownership of land. This requirement was fulfilled through the enactment of the **Environment and Land Court Act, No. 19 of 2011.** 15. The counsel argued that the mandate of a succession court is exclusively to allocate the estate of a deceased individual and not to resolve questions concerning ownership or utilization of registered land. By examining whether the Respondent had been evicted from the registered land, the counsel contended, the trial magistrate exceeded his jurisdiction to address matters of use and occupation of registered land, a domain in which he clearly lacked authority. Given this lack of jurisdiction, the counsel asserted that the magistrate should have terminated the proceedings upon the objection being raised, rather than proceeding to assess the substantive issues of the dispute. 16. Counsel submitted, in conclusion, that since the trial court lacked jurisdiction to entertain the matter, there was no need for this Court to consider grounds 1 and 2 of the Memorandum of Appeal. Accordingly, Counsel urged that the appeal be granted as requested in the Memorandum of Appeal dated 27th July, 2023 and respectfully submitted as such. **Respondent's Submissions** 1. Despite service of the record of appeal upon him, and despite the directions of this Court that the appeal be canvassed by way of written submissions, no submissions were filed on behalf of the Respondent. The appeal accordingly fell to be determined on the strength of the record of appeal and the submissions filed on behalf of the Appellant alone. **Determination** 1. I have considered the record of appeal, the Ruling of the trial court, the Memorandum of Appeal, and the submissions filed on behalf of the Appellant. Guided by the duty of a first appellate court as set out in **Selle & Another v Associated Motor Boat Co. Ltd & Others (supra)** and in **Peters v Sunday Post Limited (supra)**, and as restated in **Bwire v Wayo & Sailoki (supra)**, I am obliged to re-evaluate the evidence on record and arrive at my own independent conclusions, while bearing in mind that I did not have the advantage of seeing and hearing the witnesses testify. 2. Having considered the three grounds of appeal set out in the Memorandum of Appeal, and the way they were argued before this Court, it is my considered opinion that the only issue for determination in the first instance is; 3. **Whether the trial court had the requisite jurisdiction to entertain and determine the dispute between the parties in the manner it did in its Ruling delivered on 19th October 2023.** 4. This is because a determination that the trial court lacked jurisdiction would be conclusive of the entire appeal, obviating the necessity for this Court to analyze the substantive claims regarding the 4 acres of land, which are the subject of grounds 1 and 2 of the Memorandum of Appeal. Jurisdiction, as a fundamental matter, must be established prior to addressing substantive issues. 5. Firstly, it is undisputed that the subject matter of the protest before the trial court was registered land constituting part of the deceased's estate. The Respondent's case, as a protestor, was based on the assertion that his late mother had purchased 4 acres of the land from the deceased and from Lukas Wamalwa Welekhe, respectively, pursuant to sale agreements executed between 1981 and 1992. 6. It was further claimed that the protestor’s deceased mother and her family had occupied the land for over fifteen years prior to being evicted by the Appellant. Conversely, the Appellant challenged the validity and authenticity of those agreements, pointed out discrepancies in the parcel numbers referenced therein, and denied that the Respondent's family had ever occupied the suit land. 7. It is trite law, as stated in **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd (supra),** 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. Furthermore, **Article 162(2)(b) and 165(5) of the Constitution**, read together with **Section 13 of the Environment and Land Court Act**, **Sections 2 and 101** of the **Land Registration Act** and **sections 2 and 150 of the Land Act**, is unambiguous: disputes relating to the sale, registration, transfer, use, occupation, and title of land fall within the exclusive original jurisdiction of the Environment and Land Court and such subordinate courts as may be conferred with jurisdiction over the same. 2. In this case, the trial court was essentially tasked with assessing the existence of valid sale agreements between the deceased and Lukas Wamalwa, as well as between Lukas Wamalwa and the late Susana Nasambu. It also needed to evaluate whether discrepancies in the parcel numbers within those agreements were material, and to determine whether the family of the late Susana Nasambu had occupied and subsequently been evicted from the subject land. 3. In my considered opinion, these issues are central to matters concerning the alleged sale of the subject land, which is registered land, its use and occupation thereof and the conveyance of title. These are issues that clearly fall within the jurisdiction of the Environment and Land Court rather than that of a succession court, which primarily handles the distribution of a deceased person's estate to the lawful and legal beneficiaries. Disputes regarding ownership, sale, or occupation of registered land do not fall within the purview of a succession court, 4. This was the holding of the court **In re Estate of Prisca Ong'ayo Nande (Deceased)** **“My understanding… 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 processes the subject of the two statutes.”** 1. A succession court cannot therefore, in the course of determining the beneficiaries of an estate, also purport to determine a live and contested dispute relating to the sale, transfer, and title to registered land forming part of that estate. Any such dispute is one for the Environment and Land Court and the dispute before the trial court as herein summarized now the subject matter of this appeal was one such. The trial Magistrate had no jurisdiction to handle this matter sitting as he was as a succession and not an environment and land court. 2. Further, having perused the pleadings, proceedings, submissions and the impugned judgement of the lower court, I note that the objection to the jurisdiction was raised and it court very prominently in the submissions filed on behalf of the Petitioner. In the impugned judgement however, I note that the Learned Magistrate paid no heed at all to the issue yet he needed to. He needed to because jurisdiction is a threshold issue that a court must determine at its earliest, so as to satisfy itself that it is properly seized of any matter before it. 3. In light of the foregoing, I find and hold that the learned trial magistrate, in determining the disputed questions of sale, discrepancy in parcel numbers, and occupation of the suit land as between the Appellant and the Respondent, without first addressing and resolving the objection to jurisdiction raised before him, exceeded the jurisdiction conferred upon a succession court. Consequently, the Ruling delivered on 19th October, 2023 and all the consequential orders thereto are null and void *ab initio* for want of jurisdiction. 4. Having thus established this preceding point, it is concluded that ground 3 of the Memorandum of Appeal is successful. This determination conclusively resolves the entire appeal. It is therefore not necessary for this Court to consider grounds 1 and 2 of the Memorandum of Appeal, as they pertain to the substantive merits of the competing claims to the suit land. The resolution of such merits, if at all, is appropriately within the jurisdiction of a court duly vested with the mandate over these matters. 5. Accordingly, the appeal succeeds and the same is now hereby allowed in its entirety. Consequently, the Ruling of the Chief Magistrate, Hon. C. Maundu, delivered on 19th October 2023 in **Bungoma Succession Cause No. 218 of 2017** together with all the consequential orders thereto is hereby is now hereby set aside in their entirety with costs to the Appellant. **Read, Dated and Signed at Bungoma on 9th July 2026.** **E. OMINDE** **JUDGE**