https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10769

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CIVIL APPEAL NO. E001 OF 2024** **IN THE MATTER OF THE ESTATE OF AKOMBE NAKHUMICHA WELUMIA (ALIAS NAKHUMICHA WELUMIA) (DECEASED)** **WYCLIFFE KISAKA WELUMIA.............................................APPELLANT** **VERSUS** **JOHNSTONE WANYONYI KAITA.......................................RESPONDENT** ***(Being an appeal from the Ruling of Hon. T.M. Olando, Principal Magistrate, delivered at the Chief Magistrate's Court at Bungoma on 15th February 2023, and the consequential Ruling of 30th November 2023, both in Bungoma SUCC. Cause No. 395 of 2019)*** **JUDGMENT** 1. This is an appeal arises from Bungoma **SUCC. Cause No. 395 of 2019**, in the matter of the estate of Akombe Nakhumicha Welumia, also referred to in the record as Nakhumicha Welumia. The Appellant, Wycliffe Kisaka Welumia, was the Petitioner before the subordinate court. The Respondent, Johnstone Wanyonyi Kaita, was the Objector. The Appellant and the Respondent are children of the Wachie Welumia (deceased). The said Wachie Welumia had two wives being the deceased Akombe Nakhumicha Welumia who is the mother of the Respondent and Anyili Sasenya who is who is the mother of the Appellant. 2. The dispute pertains to the entitlement to the estate of the deceased Akombe Nakhumicha Welumia and specifically **LR No. Bokoli/Bokoli/620**, which is registered in the deceased's name. There is also **LR No. Bokoli/Bokoli/611** that forms part of the estate of the deceased Wachie Welumia who is the father of the Appellant and Respondent. This particular parcel is registered in the name of the Appellant. And there is no dispute over it. The parties acknowledge and it is not in dispute that the **LR NO. Bokoli/Bokoli/611** is registered in favour of and occupied by the Appellant's house**.** 3. The dispute herein is with respect to **LR No.** **Bokoli/Bokoli/620** which is registered in the name of the deceased Akombe Nakhumicha Welumia, who as has already herein stated, is the mother of the Respondent. The conflicting accounts regarding the composition of the family of the deceased Wachie Walumia and the role of the deceased Akombe Nakhumicha Welumia within it is the gist of this appeal as detailed below. 4. The Appellant cited the Respondent herein as the biological son of the deceased Akombe seeking that he takes out a grant of letters of administration of his late mother’s estate to which he too laid claim as a beneficiary. It was his case that when the deceased got married to his deceased father, she had already sired the Respondent with another man. 5. That his late father caused the **LR No. Bokoli/Bokoli/620** to be registered in the name of the Respondent’s mother in the year 1993. That notwithstanding the fact that subsequent thereto the deceased Akombe and her family including the Respodent occupied the said land parcel, he is also entitled to the said land as a beneficiary of the late Akombe and his son Moses Nyongesa Kisaka lodged a caution over the said Lr No. Bokoli/Bokoli/620 to protect his interests. 6. The citee responded to the citation stating in a nutshell he is the only son of the deceased Akombe who was married to his father the deceased Wachie Welumia. That his late father had allocated each of the two families with their respective parcels of land and the Appellant’s mother Anyili Naisenya and her family including the Appellant then Citor, were given their parcel being **LR No. Bokoli/Bokoli/611.** That the Citor and his son are not beneficiaries to his late mother’s estate and therefore lack the *locus* *standi* to direct him to take out letters of administration concerning his late mother’s estate. 7. The Hon Justice Riechi by an Order dated 1st July 2019 directed that the Citee files Succession proceedings within sixty (60) days from 3rd July 2018 failure to which the Citor was at liberty to apply. Subsequently, the Appellant petitioned for and obtained a grant of letters of administration in respect of the estate of the deceased Akombe asserting an entitlement to **LR No.** **Bokoli/Bokoli/620** on the footing that the deceased held the land as a trustee of, or for the benefit of the house of Wachie Welumia, to whom he stated he is the sole surviving son. 8. However, the Respondent/Objector filed an objection/protest dated 12th October 2022. Therein, he stated that he is the son of the deceased Akombe Nakhumicha Welumia, and one Julius Kaita. He also laid claim to **LR NO.** **Bokoli/Bokoli/620** as the deceased only surviving son. Upon conclusion of the Objection proceedings, the Learned Principal Magistrate rendered his Ruling on **15th February 2023**, wherein he determined in material part, that there was no indication on the title deed that the deceased Akombe Nakhumicha Welumia, was registered as a trustee of **LR No.** **Bokoli/Bokoli/620**for the benefit of Wachie Welumia's estate. 9. The Hon Magistrate also made a finding that the Appellant was not a son of the deceased Akombe Nakhumicha Welumia and that further, the Appellant had not denied that he had already been allocated and enjoyed a share of Wachie Welumia's land, being **LR No.** **Bokoli/Bokoli/611**, which in fact is a larger share and as such he could not additionally lay claim, by way of customary trust or otherwise, to **LR No.** **Bokoli/Bokoli/620**. 10. On that basis, the trial court found merit in the Objector's application and allowed the same. The Appellant thereafter issued summons to confirm the grant dated 9th October 2023. By a further Ruling delivered on 30th November 2023, the trial court noted that the grant the Appellant sought to confirm had already been revoked by operation of the Ruling dated 15th of February 2023, that there was consequently no grant to confirm, and dismissed the application with costs to the Respondent. 11. The Respondent subsequently obtained a grant of letters of administration of the deceased estate in his favour and the same was confirmed on 15th May 2024, the Appellant having raised no objection to the application for confirmation. Aggrieved, the Appellant lodged a Memorandum of Appeal dated 5th January 2024, hence the present appeal. 12. Pending the hearing of the appeal, the Appellant filed a Notice of Motion dated 28th May 2025, supported by his own affidavit, seeking a stay of execution of the subordinate court's decree on the principal ground that the Respondent was disposing of the suit land to third parties. The Respondent opposed the application by way of a Replying Affidavit sworn on 18th September 2025. 13. By a Ruling delivered on 9th March 2026, this court declined to grant the stay sought, holding, among other things, that the Appellant had not demonstrated the substantial loss he stood to suffer and that a stay would, in any event, serve no useful purpose given that the Respondent had already begun disposing of parts of the estate. The court reserved the substantive appeal for hearing on its merits, which now falls for determination. 14. The Memorandum of Appeal raises, in substance, the following grounds: 15. **That the Learned Trial Magistrate erred in law and in fact in failing to properly evaluate the evidence on record before arriving at his decision;** 16. **That the Learned Trial Magistrate arrived at a decision that was against the weight of the evidence and contrary to law.** 17. **That the Learned Trial Magistrate failed to consider the Appellant's submissions and the issues raised in the proceedings; and** 1. **That the Learned Trial Magistrate failed to interrogate the Respondent's (Objector's) evidence with the same rigour applied to the Appellant's case.** **Respondent’s Replying Affidavit** 1. In his Replying Affidavit, sworn on 18th September 2025, filed in opposition to the Appellant's Notice of Motion for stay of execution, the Respondent deposed that the Appellant is neither a liability nor a beneficiary to the deceased's estate, annexing the area Chief's introductory letter listing the estate's beneficiaries as "J1," and that the Appellant, being a stranger to the estate, had in fact been expressly excluded from distribution by the trial court's judgment, annexing the certificate of confirmation of grant as "J2." 2. He further deposed that the title deed for the land parcel **LR. No.** **Bokoli/Bokoli/620** does not indicate that the deceased held the land as a trustee, meaning the Appellant has no claim whatsoever to it, annexing the green card as "J3." On this basis, he contended that the appeal does not have a high chance of success and that the Appellant would not suffer any loss if the orders sought were refused, since he is not, and has never been, in occupation of **Bokoli/Bokoli/620**. 3. He described the Appellant's alleged threats of eviction as imaginary, explaining that the Appellant and his family reside on a separate parcel being **LR No. Bokoli/Bokoli/611**, in which the Respondent has no interest or claim, annexing a further green card as "J4." Regarding the sale agreement, the Respondent confirmed that he had disposed of part of the estate in 2021 to cover for the succession costs. 4. He also stated that, as administrator of the estate, he is in the process of effecting the certificate of confirmation of grant and prayed that this process is not stayed, arguing that any claim the Appellant may have falls outside the jurisdiction of the succession court. Finally, he pointed out that the judgment appealed from was delivered on 30th November 2023, and that the certificate of confirmation of grant was issued on 15th May 2024, and that the instant application by way of the Notice of Motion dated 28th May 2025 has been brought after an unreasonable delay. **Appellant's Replying Affidavit** 1. The Appellant also filed a Replying Affidavit dated 24th September 2025 stating that his father, Wachie Welumia, lived in Bokoli village and had two wives, Akombe Nakhumicha Welumia (the deceased) and Nanyama Welumia. Wachie Welumia died in 1944, and at that time, the deceased had no children. After his death, the deceased remarried Rasto Masinde Nangubo, but that marriage ended in divorce. 2. She then married Julius Kaita, with whom she had three children: Grace Nangikhe Kaita, Beatrice Naliaka Kaita, and the Respondent, Johnstone Wanyonyi Kaita. The Appellant further stated that when Wachie Welumia died in 1944, his only son, Wycliffe Kisaka Welumia, was too young at the time to manage or protect his late father's estate. **Submissions** 1. The court gave directions that the appeal be canvassed by way of written submissions, and both parties filed their submissions. **Appellants Submission** 1. The Appellant submits that the estate under appeal belongs to his father, Wachie Welumia, who died in 1944, leaving two widows, namely Akombe Nakhumicha, with whom the deceased had no children, and Wanyama Welumia. He submits that Akombe Nakhumicha subsequently deserted the matrimonial home and the marriage, and was married by Rasto Masinde Nangubo, with whom, as in her first marriage, she had no children; that she thereafter deserted that marriage as well and married Julius Kaita; and that it was in this third union that Akombe Nakhumicha was blessed with three children, namely Grace Nangikhe Kaita, Beatrice Naliaka Kaita, and the Respondent, Johnstone Wanyonyi Kaita. 2. He further submits that Wachie Welumia, before his death, had only one son, the Appellant himself, who was then very young and could not inherit his deceased father's estate, such that the estate was placed under the trust of the clan, pending the son growing up to inherit his father's estate. Furthermore, that by virtue of the desertion and the contracting of another marriage, Akombe Nakhumicha became Julius Kaita's wife. 3. That all her children are members of Julius Kaita's family and beneficiaries of Julius Kaita's estate, and when Akombe Nakhumicha died, she was buried at Julius Kaita's home and her burial rites were conducted there, a fact he says demonstrates that the claim to inheritance and to the matrimonial home of Wachie Welumia's family shifted away from Akombe Nakhumicha and her descendants entirely. 4. He also submits that in the 1970s he personally attempted to take charge of his late father's estate, and was invited before the clan elders to deliberate on the issue; that the clan advised him to be patient, on the understanding that Akombe Nakhumicha was merely farming the land and would in due course vacate it; and that the position only changed when Akombe Nakhumicha fraudulently caused the title to **LR No. Bokoli/Bokoli/620** to be registered in her own name, thereby disinheriting him of his ancestral land. 5. The appellant contends that the following issues therefore fall for the court's determination: (a) whether Akombe Nakhumicha, having deserted the marriage without bearing a child and having lawfully remarried elsewhere, remained the wife of Wachie Welumia; (b) whether the Respondent, being the son of Julius Kaita and Akombe Nakhumicha, is entitled to the estate of Wachie Welumia; (c) whether Akombe Nakhumicha was entitled to undertake succession and be issued with title to Wachie Welumia's estate, given that he died in 1944; and (d) whether the Appellant, as the biological son of Wachie Welumia, is entitled to his father's ancestral land, *to wit* Bokoli/Bokoli/Block 620. 6. The Appellant reiterated that Wachie Welumia died in 1944 without having sired any child with Akombe Nakhumicha, thereby establishing that there is no biological relationship between them. Subsequently, Akombe Nakhumicha married Rasto Masinde (without issue) and later Julius Kaita, with whom she had three children, including the Respondent. 7. That according to Bukusu customary law, since Akombe Nakhumicha was interred in 2005 on Julius Kaita's land, with all customary rites duly performed and without involvement from Wachie Welumia's family, it is implied that if Akombe Nakhumicha had fathered a child with Wachie Welumia, such a child would possess a direct claim to Wachie Welumia's estate. 8. That based on this reasoning, he contends that the Respondent is therefore precluded from inheriting Wachie Welumia’s estate, as the title thereto was acquired through fraudulent means. He further argues that a contrary ruling would result in the disinheritance of the Appellant from his ancestral land and birth right. 9. Regarding the question of the Respondent's identity, the Appellant asserts that the Respondent is the son of Julius Kaita and was adequately provided for in the distribution of Julius Kaita's estate. The Appellant further contends that any extension of his inheritance to Wachie Welumia's estate is not based on any blood relationship, as his mother was married into the family and sired him with Julius Kaita. Additionally, the Appellant argues that if he were to inherit Wachie Welumia's estate, such an action would constitute fraud. 10. With regard to whether Akombe Nakhumicha was authorized to administer succession over the estate of Wachie Welumia, the Appellant asserts that such an act was fraudulent and that no lawful succession in favour of Akombe Nakhumicha was ever properly conducted. He contends that if the succession had been appropriately executed initially, there would have been no necessity to initiate this petition to inherit his father's estate. 11. That based on this argument, he respectfully requests that the Ruling and Judgment of the lower court be set aside, and that he be granted letters of administration for his ancestral land, *to wit* **LR No.** **Bokoli/Bokoli/Block 620**, which he claims is currently threatened with disinheritance through fraudulent means. 12. On the strength of the foregoing, the Appellant prays that the appeal be allowed, that the ruling and judgment of the subordinate court be set aside, and that the grant be confirmed in his favour; that the Respondent be confined to whatever share he is entitled to in the estate of his own late father, Julius Kaita, and be found to have no claim in the estate of Wachie Welumia; and that the appeal be allowed with costs. **Respondents Submission** 1. Counsel for the respondent submits that the appeal pertains to the judgment rendered in **Bungoma Succession Cause No. 395 of 2019** on 30th November 2023. Furthermore, it is asserted that the Ruling contested in the Record of Appeal at page 38 was issued in relation to an application dated 9th October 2023, in which the Appellant sought confirmation of the grant. 2. However, Counsel posits that the grant the Appellant aimed to confirm had previously been revoked by the court in an earlier decision delivered on 15th February 2023. Consequently, at the time of the challenged Ruling, there was no remaining grant for the court to confirm. 3. He further submits that, although certain documents were not formally included in the Record of Appeal, they nonetheless form part of the trial court's proceedings, and that items 4 to 12 on the index of the Record of Appeal were not part of the proceedings before the trial court and were therefore properly not taken into account by that court in arriving at its decision; on this basis, he urges this court to uphold the trial court's ruling. 4. That independently of that procedural point, the Respondent submits on the merits that the deceased, Akombe Nakhumicha Welumia, is the registered owner of the suit property, land parcel **Bokoli/Bokoli/620**, as shown at page 49 of the Record of Appeal, and that the beneficiaries of her estate are as listed in the area Chief's introductory letter appearing at page 48 of the Record of Appeal. 5. He submits that the Appellant is neither a beneficiary of, nor liable to, the estate of Akombe Nakhumicha Welumia, and that if the Appellant's claim is properly understood as one founded on a customary trust, this court, sitting in its succession jurisdiction, is bereft of jurisdiction to entertain it, the dispute being one properly for determination by the Environment and Land Court. On this basis, he submits that the Appellant has no interest whatsoever, whether legal or equitable, in parcel **Bokoli/Bokoli/620**, and prays that the appeal be dismissed with costs. **Determination** 1. As a first appellate Court, this Court, as was observed in **Selle vs Associated Motor Boat Company Ltd [1968] E.A. 123**, is duty-bound to re-evaluate the evidence tendered before the trial Court and reach its own independent conclusions. In this case, it was observed; “.... **An appeal from a High Court is by way of rehearing and the Court of Appeal is a first appellate court. It is not sufficient to merely scrutinize the evidence and say whether the trial Judge was right or wrong. An appellate court is not bound to accept the trial Judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally**.” 1. Further, in **Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR,** the Court set out the role of the first appellate Court in the following terms; “.... **This being a first appeal, we are reminded of our primary role as a first appellate Court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way**.” 1. With the foregoing guidance, I have considered the issues at hand as expressed in the grounds of appeal and the submissions herein filed and it is my considered opinion that the following issues arise for determination; 1. **Whether in the matter concerning the estate of Akombe Nakhumicha Welumia, the Appellant, possesses the requisite legal standing *'locus standi'* to petition for or assert a claim to a grant of representation to the deceased estate.** 2. **Whether the Appellant discharged the burden of proof regarding the existence of a customary trust under which he alleges the deceased held title to Bokoli/Bokoli/620 for the benefit of the Appellant and/or the house of Wachie Welumia.** 3. **Whether the registration of LR No. Bokoli/Bokoli/620 in the name of the deceased was obtained by way of fraud.** 4. **Whether the Appellant, having already been allocated and being in occupation of Bokoli/Bokoli/611, is precluded from asserting a further beneficial claim over Bokoli/Bokoli/620.** 2. The court further identifies the following ancillary issues, which do not independently dispose of the appeal but are addressed for completeness: 3. **Whether the Respondent, as a surviving child of the deceased, is entitled to a grant in respect of her estate under the Law of Succession Act.** 4. **Whether the deceased remained the customary wife of Wachie Welumia notwithstanding her subsequent remarriage(s).** 5. **Whether the subordinate court had jurisdiction to determine a customary trust claim over registered land, as opposed to the Environment and Land Court**. 6. On the issue of *locus standi*, **the Law of Succession Act, Cap 160**, does not address estates in an abstract manner. **Section 2(1) of the Act** defines the "estate" of a deceased individual as their specific property, and a grant of representation is issued, pursuant to **Section 51 of the Law of Succession Act** and the applicable **Probate and Administration Rules** enacted thereunder, in respect of a named deceased person and no other. Consequently, succession is non-transitive: an individual does not acquire standing in one estate solely by virtue of a claim, whether actual or asserted, whether proven or unproven, in a different estate. 7. The cause before the subordinate court in **Bungoma SUCC. Cause No. 395 of 2019** is on its face a cause concerning the estate of Akombe Nakhumicha Welumia, who is the registered proprietor of **LR. NO.** **Bokoli/Bokoli/620**. It is not, and hasnot been at any stage converted into, a cause concerning the estate of Wachie Welumia, who died in 1944 and whose estate, if any part of it remains unadministered, has never been the subject of an application for the grant of letters of administration in these proceedings. 8. The court exercising jurisdiction in **Cause No. 395 of 2019** accordingly had no power to distribute Wachie Welumia's estate and as such, and the Appellant's repeated characterisation of the suit property as "my father's estate" and "my ancestral land" cannot, without more, convert this cause into one over an estate that was never opened before the trial court for consideration and distribution. 9. That said, the Succession Act and the Rules made thereunder do not shut the door on a person in the Appellant's position altogether. **Section 66 of the Act** sets out the order of priority for a grant on intestacy, extending first to a surviving spouse and then to children and other relatives of the deceased; **Rule 26 of the Probate and Administration Rules** permits any person minded to object to a grant to lodge a citation or protest which the Appellant did and eventually lost and **Section 29**, as read with **Section 26, of the Act** extends standing to a "dependant" of the deceased entitled to reasonable provision. None of these avenues assists the Appellant on the facts as pleaded. 10. He does not claim to be, and on no version of the record is he, Akombe Nakhumicha's spouse, child, or established dependant; his claim is instead that an asset registered in her name should nonetheless be treated as not truly hers, but as property she held for the benefit of a different family line altogether, that of Wachie Welumia. 11. That is a claim that the Rules permit a party to raise, and the trial court was correct to entertain it rather than summarily shutting the Appellant out at the threshold. However, the procedural latitude to be heard is not to be mistaken for a substantive entitlement to share in the estate. The two are analytically distinct, and it is the latter, not the former, that determines the outcome of this appeal. 12. This distinction is further reinforced by authority on the limits of a succession court's over contested title. In the case of **Trouistik Union International & Another v. Jane Mbeyu & Another [1993] eKLR,** the Court of Appeal held that a succession court is authorized solely to distribute property demonstrably belonging to the deceased under administration. When a bona fide dispute arises as to whether a specific registered asset constitutes part of the deceased's estate, rather than being held for the benefit of another person or estate, such a dispute cannot be resolved by mere presumption in favour of either party. Instead, the burden of proving the exception applies rests with the party asserting it. 13. The same principle was applied in **In re Estate of Reuben Nzioka Mutua (Deceased) [2016] eKLR**, where the court held that the probate jurisdiction, while it extends under **Section 47 of the Act** to determining disputes connected with the administration of an estate properly before it, does not as a matter of course extend to adjudicating competing title claims by strangers to that estate, such claims lying more properly within the jurisdiction now vested in the Environment and Land Court by **Section 13 of the** **Environment and Land Court Act, 2011**, save where, as here, the trial court receives evidence on the point as a necessary incident of determining who is entitled to the grant sought before it. 14. The learned Trial Magistrate's determination that the petitioner/respondent is not a son of the deceased was, based on this analysis, not merely as a permissible factual finding that was on the record before the trial court, but also on a correct application of the principle that a person who is a stranger to a deceased's family acquires no distributive interest in the deceased's estate unless there is clear proof of a recognized exception. 15. On the current record before this court, no such proof has been furnished. Indeed, the Appellant himself has stated in his pleadings that he is not a son to the deceased Akombe Nakhumicha in whose name the suit land is registered. In this regard, his claim can only succeed, if at all, based on the customary trust theory, which the court now proceeds to examine. 16. On customary trust pleaded, a party who asserts that registered land is held on customary trust bears a clear evidential burden, both under the general rule under the **Evidence Act** that he who alleges must prove but also under the specific test applicable to customary trusts. That test was restated by the Supreme Court in **Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & Another [2018] Eklr** that; **We agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and the intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:** * 1. **The land in question was before registration, family, clan or group land** 2. **The claimant belongs to such family, clan, or group** 3. **The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.** 4. **The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances** **.5. The claim is directed against the registered proprietor who is a member of the family, clan or group** 1. In relation to this record, the Appellant's claim falters at the second and third stages of the relevant test, specifically concerning his membership in, and proximity to, the pertinent family unit. The issue is not solely that the Respondent challenges the Appellant's account but rather, the Appellant's sworn testimony on this matter is internally inconsistent. 2. In the Replying Affidavit sworn in **Succession Cause No. 158 of 2014,** the Respondent stated, without contradiction at the time, that the Appellant is the son of a different co-wife of Wachie Welumia, namely Anyili Nasenya, and that each residence, the deceased's and that of Anyili Nasenya, had already been allocated and registered independently, with parcels numbered **620** and **611**, respectively and that the Respondent’s mother and her children including the Respondent were residing on **LR No.** **Bokoli/Bokoli/620** allocated to them 3. In the current appeal, the Appellant has now taken a new trajectory altogether and has not only introduced new averments that completely contradict his earlier assertion, but has also asserted a completely different genealogical relationship between the deceased herein and his deceased father. 4. Specifically, in the facts deposed in the Affidavit in support of his Citation dated 14th April 2023 the appellant stated thus: That the deceased is his stepmother; That the Respondent is his brother being the biological son of the deceased; That the deceased was married to another man with whom she gave birth to the Respondent *before* she married his father and that she came along with Respondent and stayed on their father’s land; That his father registered the suit land in the deceased name in the year 1993; 5. However, contrary to these averments, the Appellant in this appeal now avers that he is Wachie Welumia's only son by any wife; That the deceased had no children with Wachie Welumia; That Wachie Welumia died in the year 1944; That the deceased herein abandoned the matrimonial home, got married twice and that it is in her third marriage that she sired her three children including the Respondent; That upon her death, she was buried in the home of the Respondent’s father. Interestingly though, he proceeds to state that the deceased was still utilising the **LR No.** **Bokoli/Bokoli/620** all this while and that is why the clan asked him to be patient for reasons that she would vacate it eventually. 6. With the position being as it is, it is important for the court to state that a litigant is not permitted to approbate and reprobate concerning the very foundation of his claim based on any advantage that he believes that a particular account may provide at a specific stage of proceedings. Where, as in this case, the claimant's sworn account of his relationship to the family whose land he seeks to assert a trust over has shifted significantly between h9is sworn statements, the evidentiary foundation mandated by limbs (b) and (c) of the **M'Inanga Kiebia test** cannot be regarded as having been satisfied to the requisite standard in civil proceedings. 7. The trial court, in considering the more limited record before it, reached the same conclusion, finding that the Appellant is not the deceased's son. This court, independent in its re-evaluation of the fuller record now available on appeal, arrives at no different conclusion and, in fact, finds that the case against the Appellant's standing is stronger, not weaker, than it appeared previously. 8. Limb (d) of the test, concerning consistency with the registered land, remains unfulfilled. As evidenced by the Respondent's 2014 affidavit, a family's land had already been subdivided along household lines, with each dwelling independently registered for its respective portion. 9. It is generally not permissible for a member of one household to assert a further trust interest in the portion registered to a different household, unless there is cogent and specific evidence indicating that the two portions were nevertheless intended to be held in common despite the separate registrations. No such evidence, whether in the form of a family agreement, minutes of a clan meeting, or otherwise, was presented before the trial court or has been exhibited on appeal. 10. In the absence of a proven trust, **Bokoli/Bokoli/620** falls to be treated, for purposes of intestate succession, as the deceased's Akombe Nakhumicha’s own free property. Her husband, Julius Kaita, having predeceased her, the deceased's net intestate estate falls to be distributed among her surviving children in equal shares pursuant to **Section 38 of the Law of Succession Act.** The Respondent, as a surviving child of the deceased on every account in the record, including, ultimately, the Appellant's own, is a beneficiary of that estate; the Appellant, not being her child on any account, is not. 11. On the issue of fraud, the applicable law is **Section 26** of the **Land Registration Act** , which provides that; **26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—** **(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or** **(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.** **(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.** 1. Even though the law is that fraud is never presumed but must be specifically pleaded, with full particulars of the persons, dates and acts said to constitute it as provided under **Order 2 Rule 10 of the Civil Procedure Rules, 2010.** It is to be noted that the Application of this Order is excluded in succession causes. It follows therefore that the failure by the Applicant to plead the particulars of the fraud alleged is not fatal to his claim. 2. However, even as the court notes that the Appellant's pleadings and affidavits contain repeated assertions that the deceased "fraudulently" procured registration of **LR No.** **Bokoli/Bokoli/620**, it also takes note of the fact that no substantive evidence or at all, was adduced to support of this assertion. No date of the impugned registration is given, no specific act of deception has been proffered, no forgery or collusion was identified, and no evidence, such as the parcel's registration history or the testimony of the land adjudication or registration officers concerned, was placed before the trial court to substantiate the allegation. The act of engaging in fraud to disposes a rightful owner of their lawfully acquired property is not only a civil wrong, but is also a criminal offence where the standard of proof is beyond reasonable doubt. One can therefore not allege fraud in such general terms which then amount to bare assertions and expect the court to act upon it and suffice to impeach a registered title. This ground of appeal accordingly fails. 3. On the fourth issue, independently of the foregoing, the trial court made an express and, on this record, unchallenged finding that the Appellant had already been allocated, and did not deny receiving, a share of Wachie Welumia's land being **LR No.** **Bokoli/Bokoli/611**, which is indeed a larger share being a total of 31 acres than that which he now claims in LR No. Bokoli/Bokoli/620 which totals 14 acres. 4. A claimant who has already been the beneficiary of a distribution of family land, and who occupies and enjoys that distributed portion without complaint, cannot, absent cogent evidence of a continuing and distinct trust over a different, separately registered parcel, be heard to say that he has been left destitute or unfairly disinherited. This finding alone constitutes an independent and sufficient foundation for dismissing the Appellant's claim over Bokoli/Bokoli/620, entirely separate from the challenges addressed with regard to the facts proffered in support of the Appellant’s case on the three issues as above. 5. On the Ancillary issues, with respect to the Respondent's own entitlement now that the court has herein is established that LR No. **Bokoli/Bokoli/620** is the deceased's own intestate property, the Respondent's entitlement as a son to the deceased follows directly pursuant to the provisions of **Section 38 of the Law of Succession Act** as a surviving child of the deceased. No separate inquiry into his relationship to Wachie Welumia is required, since his claim rests not on that relationship but on his undisputed status as a child of the deceased herself. 6. On whether the deceased remained Wachie Welumia's customary wife this question, though extensively argued in submissions, would only become material if the Appellant had first established that **Bokoli/Bokoli/620** was held in trust for Wachie Welumia's estate rather than owned by the deceased in her own right, a threshold the Appellant has not met. The court accordingly declines to make a definitive finding on a question of customary law that does not affect the outcome of this appeal. 7. On jurisdiction to the extent a claim is founded purely on a customary trust over registered land as against strangers to an estate, such a claim ordinarily falls for determination before the Environment and Land Court under **Section 13 of the Environment and Land Court Act, 2011**, rather than before a probate court whose jurisdiction under **Section 47 of the Law of Succession Act** is confined to matters connected with the grant and administration of the estate before it. 8. Since, however, the trial court in fact received evidence and made a determinate finding on the trust question as a necessary incident of deciding entitlement to the grant, and neither party raised jurisdiction as a discrete, properly particularised ground of appeal, this court does not rest its decision on that ground. The observation is made only to reinforce the conclusion that any further, genuinely land-specific dispute the Appellant may wish to pursue lies properly before the Environment and Land Court, and not by way of a further succession appeal. 9. Having independently re-evaluated the record, this court finds no error of law or fact in the Learned Trial Magistrate's Ruling of 15th February 2023, nor in the consequential Ruling of 30th November 2023. The Appellant did not discharge the burden of proving either direct entitlement or a customary trust in his favour over **LR No.** **Bokoli/Bokoli/620**. 10. His own sworn account of his parentage and relationship to the deceased has been inconsistent and unreliable, and further, he has already benefited to a greater extent from a distribution of the family's ancestral land. The subsequent confirmation of the grant in favour of the Respondent on 15th May 2024, to which the Appellant raised no objection at the time, stands undisturbed. 11. For the foregoing reasons, the court makes the following orders: 12. **The Appellant’s Appeal is now hereby dismissed in its entirety.** 13. **The Ruling of the Ruling of the Learned Trial Magistrate delivered on 15th February 2023, and the further Ruling of 30th November 2023, together with all the consequential orders thereto in Bungoma SUCC. Cause No. 395 of 2019 are now hereby upheld.** 14. **The Certificate of Confirmation of Grant issued in favour of the Respondent herein on 15th May 2024 is upheld and the same shall not be disturbed.** 15. **The Appellant shall bear the costs of this appeal.** **Read dated and Signed at BUNGOMA on 16th July 2026** **E. OMINDE** **JUDGE**