https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9112

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **FAMILY APPEAL NUMBER E013 OF 2025** **VIRGINIA WANGUI NDEGWA ------------------------------- APPELLANT** **VERSUS** **FLORA WANGUI KARIUKI ----------------------------- 1ST RESPONDENT** **JOHN KARIUKI MUTURI------------------------------- 2ND RESPONDENT** **GEORGE KAMAU MUTURI ---------------------------- 3RD RESPONDENT** **MARY WANJA MUTURI --------------------------------- 4TH RESPONDENT** ***{( Being an Appeal from an order of the Chief Magistrate’s Court ( Hon. Linah Akoth- SRM) arising from a Ruling delivered on 20th March 2025 in Nakuru CM SUCC. CAUSE NO. E053 of 2022 in the matter of the Estate of James Muturi Harun (deceased)}*** **JUDGMENT** 1. This Appeal challenges the lower court’s Ruling dated 20th March 2025 by which the Appellant’s Application dated 2nd August 2024 for review, variation and/or setting aside of orders the court earlier issued in an Application dated 8th February 2024 with respect to transmission of property known as UNS. B.C.R PLOT NO. 5 GILGIL TOWNSHIP, was allowed as per the impugned Ruling. The Appeal is predicated upon the following grounds contained in the Memorandum of Appeal dated 12th May 2025; 2. **THAT the learned trial magistrate erred in law and in fact in disregarding the Appellant’s evidence adduced, the submissions filed and the authorities in support hence arriving at an erroneous finding.** 3. **THAT the learned trial magistrate erred in law and in fact in considering and regarding extraneous matters hence arriving at an erroneous finding.** 4. **THAT the learned trial magistrate erred in law and in fact in travelling beyond the pleadings in her determinations and consequently descended into the arena of the dispute thus arriving at grossly erroneous finding.** 5. **THAT the learned trial magistrate erred in law and in fact in failing to consider that the subdivisions marked as “B” and “C” refer to one and the same property being the subdivision of UNS. B. C. R PLOT NO. 5 GILGIL TOWNSHIP thus arriving at an erroneous finding.** 6. **THAT the learned trial magistrate erred in law and in fact in failing to consider that the sale agreement dated 12th September, 2005 and the tenancy in common agreement dated 11th October, 2006 are all in respect of the same property being UNS. B. C. R PLOT NO. 5 GILGIL TOWNSHIP thus arriving at an erroneous finding.** 7. **THAT the learned trial magistrate erred in law and in fact in failing to consider that one half of the said sub division of UNS. B. C. R PLOT NO. 5 GILGIL TOWNSHIP marked at “B” is matrimonial home and the only known home by the Appellant and her family thus arriving at an erroneous finding.** 8. **THAT the learned trial magistrate erred in law and in fact in subdividing the ½ share of the subdivision of UNS. B. C. R PLOT NO. 5 GILGIL TOWNSHIP marked as “N” between the two houses of the deceased herein and further into 7 equal units whereas the said ½ share is matrimonial home for the 2nd house, the Appellant herein hence arriving at an erroneous finding.** 9. **THAT the learned trial magistrate erred in law and in fact in failing to consider that subdividing the Appellant’s matrimonial home would be an affront to her rights as a spouse of the deceased and her property rights thus arriving at erroneous finding.** 10. **THAT the learned trial magistrate erred in law and in fact in disregarding the evidence on record, including the draft consent by the parties, which pointed to the Appellant’s right to retain the ½ share marked as plot “B” being her matrimonial home thus arriving at erroneous finding.** 11. **THAT the learned trial magistrate erred in law and in fact in failing to consider the property known as HAPPY VENUS HARDWARE GILGIL despite there being no contestation as to the mode of distribution thereof thus arriving at an erroneous finding.** 12. **THAT the learned trial magistrate erred in law and in fact in failing to consider that most of the property under the estate of the deceased herein was distributed to the first house hence arriving at an unequitable finding and distribution.** 13. The Appellant prays that the lower court’s Ruling dated 20th March 2025 in respect to the above described property known as UNS. B.C.R PLOT NO. GILGIL TOWNSHIP and consequential orders flowing therefrom be set aside entirely; that this court does substitute the Ruling relating to the stated property with its own Ruling; that another property known as HAPPY VENUS HARDWARE GILGIL be distributed in the manner proposed by the families;(*sic*) and that the costs incurred in this Appeal and in the trial court be borne by the Respondents. 14. The background to the Appeal is that Grant of Letters of Administration in respect of the deceased’s Estate herein was issued to the Appellant, one of the deceased’s wives, on 4th August 2022. The Appellant thereafter filed an Application dated 27th July 2023 seeking confirmation of the Grant in order to transmit the deceased’s Estate to identified lawful beneficiaries. That Application provoked the Respondents’ Protest that was dismissed by the lower court by Ruling delivered on 8th February 2024. The Appellant then brought the Application dated 2nd August, 2024 seeking review of the Ruling, particularly as it relates to transmission of the above property described as UNS. B.C.R PLOT No. GILGIL TOWNSHIP. 15. Principles guiding determination of a first Appeal such as before me were long settled in many cases including the often quoted case of **Selle vs Associated Motor Boat Company. Ltd & Others (1968) EA 123.** The court is enjoined to review the material placed before the lower court with a view to reaching its own conclusions both on matters of fact and law while bearing in mind that it didn’t have the benefit of seeing witnesses testify. 16. I have perused the Record of Appeal and written submissions proffered by learned Counsel for the parties. I shall not, however, determine the Appeal on merits as the same is defective for reasons to be given hereafter. 17. Contents of the Record of Appeal are provided for under **Order 42 Rule 13 (4)** of the **Civil Procedure Rules 2010** thus:- ***“….Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say-*** 1. ***the memorandum of appeal;*** 2. ***the pleadings;*** 3. ***the notes of the trial magistrate made at the hearing;*** 4. ***the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;*** 5. ***all affidavits, maps and other documents whatsoever put in evidence before the magistrate;*** 6. ***the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal.’’*** 7. Superior Courts have on numerous occasions addressed situations where the Record of Appeal is incomplete. The Supreme Court in **Law Society of Kenya vs Centre for Human Rights and Democracy & Others (Petition No. 14 of 2013) [2014] KESC 29 (KLR) held;** **“[38] …The Petition of Appeal on the other hand is a statement of grievance, an appeal cause against the judgment of a lower Court. The Record of Appeal is the complete bundle of documentation, including the pleadings, submissions, and judgment from the lower Court, without which the appellate Court would not be able to determine the appeal before it.** **[39] If an intending appellant were to present the Court with a Notice and Petition of Appeal, but without the Record of Appeal, and expect the Court to determine ‘the appeal’ on the basis of these two, such an appeal would be incomplete and hence incompetent. Indeed, this is the gist of Rule 33 (1) of the Supreme Court Rules’’.** 1. Pursuant to **Order 42 Rule 13(4)** **of the Civil Procedure** **Rules 2010** a Court may dispense with some documents being part of the Record, but the lower court’s judgment and the decree flowing therefrom are among essential contents of a Record of Appeal, without which the Appeal will not be decided. 2. I am further guided by the Supreme Court decision in**Mwicigi and 14 others vs Independent Electoral and Boundaries Commission and 5 Others [2016] KESC 2 (KLR**) where it is stated that:- **“[65]. This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so clearly intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.** **[66]. Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159 (2) (d) of the Constitution, which proclaims that, “.... courts and tribunals shall be guided by the principle that justice shall be administered without undue regard to procedural technicalities”. This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the Courts.”** 1. In the instant Appeal, the Ruling of the lower court dated 8th February 2024 which gave rise to the Application dated 2nd August 2024 that in turn led to the impugned Ruling of 20th March 2025 has not been included in the Record of Appeal. That Ruling is crucial to this court as it led to the review orders of the learned trial magistrate under challenge in this Appeal. Moreover, the Order emanating from the trial court’s Ruling of 20th March 2025 is not also included in the Record of Appeal. Neither is the Respondents’ Affidavit of Protest against confirmation of the Grant herein as well as other additional affidavits the court, as per the record, had allowed the parties to put in before determination of the Application dated 2nd August 2024. The initial Grant of Letters of Administration and any Certificate of Confirmation and/or Rectification of Grant arising from the court’s Ruling of 20th March 2025 are not also part of the Record of Appeal. 2. The missing documents are in my view critical for proper determination of this Appeal on its merits and cannot be dispensed with. 3. Owing to the defects pointed out, the Appeal is hereby struck out. Being a family matter, no order is made as to costs. **J.M. NANG’EA - JUDGE.** **Judgment delivered virtually this 24th day of June, 2026.** **In the presence of;** **The Appellant’s Advocate, Ms Mukira Advocate for the Appellant** **The Respondent’s Advocate, Ms Omondi for Mr. Ikua** **Court Assistant (Jeniffer)** **J.M. NANG’EA - JUDGE.**