https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11394

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CIVIL APPEAL NO. E092 OF 2023** **IN THE MATTER OF THE ESTATE OF ENOCK WANYAMA MUKUYUNI (DECEASED)** 1. **WYCLIFFE WANYAMA** 2. **JUSTUS MASINDE** 3. **JAMES MUMALI** 4. **JULIUS BARASA** 5. **WILSON WEKESA** 6. **JOB WANJALA** 7. **GEORGE WAFULA..........................................................................APPELLANTS** **VERSUS** **SELINA KHASOA WANYAMA** **(Substituted by ZIPPORA MUSUNDI WANYAMA as Administrator of** **the Estate of the said SELINA KHASOA WANYAMA MUKUYUNI, Deceased) .....................................................................................................RESPONDENT** **(Being an appeal from the Judgment of Hon. T.M. Olando (Principal Magistrate) delivered on 9th August 2023 in Bungoma CMC Succession Cause No. 250 of 2018)** **JUDGMENT** 1. This is an appeal against the judgment of the trial court (Hon. T.M. Olando, PM) delivered on 9th August 2023 in **Bungoma CMC Succession Cause No. 250 of 2018**, in which the trial court dismissed an application for revocation of grant brought by the Appellants herein, as Objectors, and upheld the mode of distribution of the estate of the late Enock Wanyama Mukuyuni proposed by the Respondent, Selina Khasoa Wanyama, the widow of the deceased and Petitioner in the succession cause below. 2. The deceased, Enock Wanyama Mukuyuni, died leaving behind a widow, Selina Khasoa Wanyama, and fourteen (14) children, comprising seven (7) sons and seven (7) daughters. At the time of his demise, the deceased was registered as the proprietor of, among other properties, one parcel of land known as **BUNGOMA/NDALU/890**, measuring approximately 4.32 hectares (10 acres), which he had already distributed to his sons during his lifetime, but which remained undistributed. 3. Selina Khasoa Wanyama took out a grant of letters of administration in respect of the estate and, in her proposed mode of distribution, sought to have the residual parcel, **BUNGOMA/NDALU/890**, shared out among the daughters of the deceased, the grandchildren representing three daughters who had predeceased their father, and herself as widow. 4. The Appellants, being seven of the sons of the deceased, filed an application dated 23rd October 2018 for revocation of the grant, contending that they were sons of the deceased entitled to share in his estate and that the Petitioner had refused to give them a share of the same. The matter proceeded by way of oral evidence. 5. It was established and was corroborated by the Objectors (the current Appellants) during cross-examination, that during the lifetime of the deceased, each of the seven sons had been allocated three acres of land. Additionally, title deeds had been issued in their respective names, except for three sons whose title processing remained pending solely due to the non-payment of the required fees at the Lands Registry. 6. Furthermore, it was confirmed, without opposition from the Petitioner's witnesses, that under Bukusu customary law, the daughters and the widow of the deceased had not been allocated land, based on the premise that customary practices did not permit women to inherit land. 7. In its judgment delivered on 9th August 2023, the trial court held that the Bukusu customary law, insofar as it purported to bar wives and daughters from inheriting property, was repugnant to the law and to the rules of justice. The Court further clarified that the **Law of Succession Act** stipulates an equal share for all dependants of a deceased individual, including both sons and daughters. 8. Additionally, the Court determined that the Objectors (the Appellants) had already received adequate provision during their father's lifetime and, therefore, could not assert a claim to a larger estate share than that allocated to the daughters. Consequently, the Court dismissed the application for revocation of the grant for lack of merit and ordered that each party bear its own costs. 9. Aggrieved, the Appellants preferred the instant appeal vide a Memorandum of Appeal dated 28th August 2023 and filed on 1st September 2023, raising six (6) grounds: 10. **That the learned trial magistrate erred in law and in fact by failing to consider and determine all the issues raised in evidence, and by taking into account matters he ought not to have, while failing to take into account matters he ought to have considered;** 11. **That the learned trial magistrate erred in law and in fact by misdirecting himself by treating the appellants' submissions and testimonies superficially, thereby erroneously arriving at a wrong conclusion;** 12. **That the learned trial magistrate erred in law and in fact by believing the testimony of the respondent and disregarding that of the appellants, thereby arriving at an erroneous judgment;** 13. **That the learned trial magistrate erred in law and in fact by failing to find that the appellants had proved their claim on a balance of probabilities, and applying an inordinately high standard of proof;** 14. **That the learned trial magistrate erred in law and in fact by failing to appreciate the principles surrounding the law of succession and generally being biased in the conduct of the proceedings against the appellants; and** 15. **That the learned trial magistrate erred in law and in fact by delivering a judgment void of reasons.** 16. The Appellants prayed that the appeal be allowed, that this Court set aside the decision of the lower court, re-evaluate the evidence on record and arrive at its own conclusion, and that the costs of the appeal and of the lower court be awarded to the Appellants. 17. While the appeal was pending, the original Respondent, Selina Khasoa Wanyama, died on 6th August 2024. Vide a Notice of Motion dated 24th October 2025, brought under **Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules,** her daughter, Zippora Musundi Wanyama, sought leave to be substituted as Petitioner/Administrator/Applicant in her place, upon amended letters of administration having been issued to her on 13th October 2025. 18. The application was supported by the affidavit of Zippora Musundi Wanyama, who deposed that she is a daughter of the deceased Enock Wanyama Mukuyuni and of the deceased Selina Khasoa Wanyama Mukuyuni, that the latter's death left a vacuum in the administration of the estate, and that it was imperative that the substitution be effected to allow the pending issues in the estate to be determined and the certificate of confirmation of grant implemented. 19. The court examined the Notice of Motion for substitution dated and was satisfied that Zippora Musundi Wanyama, who holds the letters of administration for the estate of the deceased Respondent, is a suitable party to be substituted as the Respondent in this appeal. Hence, it ordered the substitution accordingly. 20. The 1st Appellant, Wycliffe Wanyama, later swore a Replying Affidavit dated 3rd November 2025 in response, in which he expressed concerns that the deceased Respondent, and subsequently the intended substitute, had meddled with the estate by disposing of and cutting down trees forming part of the estate's assets. 21. The affidavit also indicated the Appellants' readiness to have the distribution of the estate resolved through mutual agreement between the parties, and to that end, to withdraw the appeal on the condition that each party bears its own costs. 22. Nevertheless, the court did not consider the aforementioned affidavit, as it was overtaken by events, given that the appellant in court had indicated that he had read the application and the court went ahead and issued an order with regard to the substitution of parties and provided directions regarding the mode of disposal of the appeal through written submissions on 27th October 2025. **Appellants' Submissions** 1. The Appellants submitted written submissions dated 9th December 2025, wherein they adopted the grounds set out in their Memorandum of Appeal without further elaboration. It was contended that the Respondent, in his capacity as estate administrator, had unlawfully intermeddled with the estate by disposing of estate land and causing trees, which were part of the estate's assets, to be cut down and sold, without providing the beneficiaries with an account of the proceeds. 2. Furthermore, the Appellants argued that, in proceeding to confirm the grant on 13th November 2023, the Respondent improperly included, as beneficiaries of the confirmed grant, persons who were, in fact, merely purchasers of portions of the estate land and not legitimate beneficiaries entitled to inherit under the Law of Succession Act. 3. That based on these grounds, the Appellants respectfully request that the court to quash, revoke, or set aside the confirmed grant dated 13th November 2023, order the Respondent to provide a comprehensive account of the proceeds obtained from the sale of estate land and felled trees, and remit the matter of grant confirmation to the lower court for retrial. **Respondent's Submissions** 1. Learned Counsel for the Respondent opposed the appeal in its entirety, submitting that the subject matter of the succession cause was, in truth, confined to the one parcel of land, **BUNGOMA/NDALU/890**, that remained undistributed at the time of the deceased's death, all other land having already been advanced to the sons during the deceased's lifetime. 2. Counsel submitted that the allocation of three acres to each son during the lifetime of the deceased constituted a gift *inter vivos* within the meaning of **Sections 28, 29, and 42 of the Law of Succession Act, Cap. 160**. Furthermore, it was contended that the trial court was correct in considering this advancement when determining the shares due to each child from the residual estate, to prevent what was described as the "double-portion syndrome." 3. Counsel maintained that the Appellants, having already received their respective portions and some having even sold their land to third parties, could not, in equity and fairness, claim an additional share of the remaining parcel in the estate, to the detriment of their sisters and the children of their deceased sisters. 4. Counsel further stated that the trial court correctly invoked the constitutional principle of equality under **Article 27 of the Constitution** in dismissing the Bukusu customary practice of excluding daughters and widows from inheritance. Counsel also contended that the appeal should be dismissed in its entirety as lacking merit, as the grounds for the appeal are unsupported by the well-reasoned judgment of the trial court. **Determination** 1. Before turning to the issues for determination, it bears restating the duty of this Court sitting as a first appellate court. This Court, as was observed in **Selle vs Associated Motorboat 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. This duty is buttressed by the statutory powers conferred on an appellate court under **Section 78(1) of the Civil Procedure Act, Cap. 21,** which provides that, subject to such conditions and limitations as may be prescribed, **An appellate court shall have power;** 1. **to determine a case finally;** 2. **to remand a case;** 3. **to frame issues and refer them for trial;** 4. **to take additional evidence or to require such evidence to be taken;** 5. **to order a new trial.** 6. Having considered the Record of Appeal and the submissions on record, I find that the following issues arise for determination: 1. **Whether the trial court erred in finding that the Bukusu customary law excluding daughters and widows from inheritance was repugnant to justice and could not be applied in the distribution of the estate;** 2. **Whether the trial court erred in finding that the prior advancement of three acres of land to each son constituted a gift *inter vivos* to be taken into account under Sections 28 and 42 of the Law of Succession Act, thereby disentitling the Appellants from a further share of parcel Bungoma/Ndalu/890;** 3. **Whether the trial court's judgment was, as alleged, void of reasons, biased, or reached upon an erroneous application of the burden of proof;** 4. **Whether the allegations of intermeddling with the estate and improper inclusion of purchasers as beneficiaries in the confirmed grant afford a basis for interference by this Court** 5. **Who shall bear the costs of the appeal** 7. On the first issue as drawn, the applicability of African customary law in Kenyan courts is indeed allowed under the Constitution of Kenya. However, its applicability is not unqualified as can be seem from the following provisions of the same said Constitution. **Article 2(1) and (4) of the Constitution** which provides for its Supremacy as follows **Supremacy of this Constitution.** * + 1. **This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.** 1. **Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid** 2. Further to this provision, **Article 159(2)(c) of the Constitution** provides for the use of alternative forms of dispute resolution including African customary law as follows; **Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);** 1. However as can be gleaned from the provisions of **Article 159(3) of the Constitution** here under reproduced, the application and use of these alternative forms of dispute Resolution and including under customary law is therefore not unqualified as follows; **Traditional dispute resolution mechanisms shall not be used in a way that—** **(a) contravenes the Bill of Rights;** **(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or** **(c) is inconsistent with this Constitution or any written law unqualified.** 1. Their use and applicability is as has been specifically qualified under **Section 3(2) of the Judicature Act, Cap. 8** which provides that; "**The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law**." 1. **Article 27 of the Constitution of Kenya, 2010**, provides for equality and freedom from discrimination for every person and the relevant excerpts are as hereunder reproduced; 2. **Every person is equal before the law and has the right to equal protection and equal benefit of the law.** 3. **Equality includes the full and equal enjoyment of all rights and fundamental freedoms.** 4. **Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.** 5. **The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.** 6. **A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4)** 7. The evidence on record, as confirmed by both the Objectors' witnesses and the Petitioner's witnesses, indicates that under the Bukusu customary practice invoked by the Appellants, daughters and widows are not entitled to be allocated land from a deceased father's or husband's estate. That this privilege is exclusively reserved for sons. Needless to say this tradition is solely based on the sex and/or gender of the claimant. 8. Without belabouring the point, in light of the constitutional and statutory provisions herein referenced, it is clearly apparent that this tradition contravenes the express constitutional guarantee of equal treatment of both women and men, as well as the prohibition against discrimination on the grounds of sex as provided under **Article 27**. 9. Furthermore, it is inconsistent with the **Law of Succession Act, Cap. 160**, which makes no distinction between male and female children regarding the devolution of intestate estates as can be seen from the meaning attributed to a dependant and therefore beneficiary of a deceased as provided under Section 29 of the Act. This section provided that a "dependant" means— **(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;** **(b) such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and** **(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death** 1. As can be seen in this provision, reference to the girl child in whatever capacity has not simply been alluded to, it has been expressly expressed. Other than that, it is to be noted that all the children of a deceased have been referred to as such. Children. There is no distinction between a male and female child of a deceased. It is worth noting also that under Section 40 of the same said Act, there is also no distinction between the children. It is simply provided that the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house. 2. The above being the case a custom of the nature of the Bukusu Customary law upon which the Objection before the Lower Court and the Appeal now before this court is premised is clearly within the scope of the repugnancy proviso as envisaged under **Article 2(4)** and the entirety of **Article 159(3) of the Constitution** as well as **Section 3(2) of the Judicature Act** herein referenced. 3. It also expressly contravenes the provisions of Article 27 of the Constitution that provides for equality and freedom from discrimination as herein cited. The court lacks competence and/or authority outside of the Constitution and any other written law to give effect to this custom, regardless of the purported deep roots of such a practice. 4. Consequently, I find no error at all in the trial court's holding that the Bukusu customary law excluding daughters and widows from inheriting the property of a deceased to whom they were undisputed dependants only by dint of the fact that they are of the female gender is repugnant to justice and could therefore not be applied in the distribution of the estate. This ground of appeal fails and the Learned Trial Magistrate’s finding is accordingly upheld. 5. Regarding the second issue as drawn, on the gift *inter vivos* to the sons, Part III of the Law of Succession Act provides for provision for dependants not adequately provided for by will or on intestacy. 6. Broadly, Section 26 thereof provides that on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased's estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased's net estate. 7. Section 27 gives the court in making provision for such a dependant the discretion to order that a specific share of the estate be given to the dependant, and to impose such conditions, as it thinks fit. 8. **Section 28(d)** thereofprovides that in considering what provision or order to make for the benefit of such a dependant in the distribution of an estate,the court shall have regard to whether the deceased had made any advancement or other gift to the dependant during his lifetime. This provision is complemented **by Section 42 of the Act,** which embodies this hotchpot principle and directs that previous benefits or gifts *inter vivos* received by a child from the deceased be taken into consideration in determining that child's share of the estate, so as to preserve equity as between beneficiaries and to prevent a double portion accruing to any one dependant at the expense of others as hereunder; **Where-** **(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or** **(b) Property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35,** **That property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.** 1. In this instant case, it was undisputed and was indeed conceded by the appellants themselves during cross-examination that each of the seven sons had already received three acres of land from their father during his lifetime, with the title transferred in their favour, except for three sons whose titles were awaiting only the payment of registry fees. No comparable advancement had been made to the daughters or the widow, who stood to receive nothing from the estate until the succession proceedings were initiated. 2. Based on this uncontroverted evidentiary foundation, and again without belabouring this point, the prior allocation to the sons clearly falls within the category of advancement or other gift as contemplated by **Section 28**, and its classification as a hotchpot item under **Section 42** was not only permissible but also mandatory, to prevent the sons from receiving a double portion, initially through *inter vivos* gift, and subsequently through an additional share of the residual estate, thereby excluding their sisters and the children of predeceased sisters. 3. In this regard, I find that the trial court correctly applied **Sections 28** and **42 of the Law of Succession Act** in confining the distribution of parcel **BUNGOMA/NDALU/890** to the daughters, the grandchildren representing predeceased daughters as provided under **Section 41 of the Act**, and the widow, and in declining to grant the Appellants a further share of that parcel over and above the three acres already advanced to each of them. This ground of appeal also fails therefore and the Leaned Trial Magistrate’s finding is accordingly upheld. 4. On the third issue of whether the impugned judgement was devoid of reasons, **Section 107(1) of the Evidence Act, Cap. 80** provides that; "**Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist**," while Section 107(2) provides that, "**When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."** 1. It is trite that in civil proceedings the applicable standard is proof on a balance of probabilities, and that a judicial officer is presumed to have acted impartially unless actual or apparent bias is demonstrated by reference to specific conduct or reasoning in the proceedings, not by bare assertion. 2. Based on my perusal of the trial court's judgment, I note that it identifies the property in issue, records and weighs the evidence of advancement to the sons as confirmed by both sides' witnesses, applies the relevant statutory provisions on gifts *inter vivos,* and resolves the customary law question by reference to the repugnancy doctrine; it is, on any fair reading, a reasoned judgment engaging substantively with the evidence and the law. 3. The burden of proving their entitlement to a further share lay, under **Section 107 of the Evidence Act**, on the Appellants as the parties asserting that right; the trial court's finding that they had already been provided for did not shift or elevate that burden but was, rather, a legitimate conclusion drawn from evidence the Appellants themselves supplied. 4. No instance of unfair conduct of the proceedings, or of reasoning tainted by extraneous considerations, has been identified in the Memorandum of Appeal or in submissions to substantiate the allegation of bias. Hence, I find that the judgment of the trial court was reasoned, that the burden of proof was correctly applied and discharged against the Appellants, and that no bias has been demonstrated. This ground of appeal fails. 5. On the fourth issue on the allegations of intermeddling with the estate, it is a cardinal principle of civil procedure that parties are bound by their pleadings, and that a Memorandum of Appeal defines and confines the jurisdiction of the appellate court to the grounds pleaded therein.This principle was affirmed by the Court of Appeal in **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others [2014] eKLR**, citing with approval the **Nigerian Supreme Court decision in Adetoun Oladeji (NIG) Ltd v Nigeria Breweries Plc**, where it was held that; **“it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the of the pleadings goes to no issue and must be disregarded…** **...In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enable parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”** 1. The Memorandum of Appeal dated 28th August 2023, which defines the scope of this appeal, is directed exclusively at the judgment of the trial court delivered on 9th August 2023, dismissing the application for revocation of the grant, and raises no ground touching on intermeddling with estate assets or on the propriety of persons subsequently included in a confirmed grant. 2. The confirmed grant of 13th November 2023 is, on the face of the record, a distinct and subsequent order of the Succession Court, and no separate or Amended Memorandum of Appeal was filed to bring it properly before this court. To entertain, at the submissions stage, allegations that were neither pleaded as grounds of appeal nor tested through evidence at trial would be to permit the Appellants to travel beyond their pleadings and to expand the jurisdiction of this Court beyond that conferred by the Memorandum of Appeal. 3. This is impermissible. Such allegations are matters that must be raised and substantiated before the succession court initially, with due notice and supporting evidence, rather than being introduced peripherally through submissions in an appeal limited to an earlier and distinct order. 4. Consequently, I shall not determine the merits of the allegations of intermeddling and improper inclusion of purchasers as beneficiaries, these not having been pleaded as grounds of appeal and relating to a distinct order not properly before this Court. I therefore find the same to be misconceived in so far as this appeal in concerned. 5. Regarding costs, even as **Section 27(1) of the Civil Procedure Act** provides that **costs of and incidental to all suits shall be in the discretion of the court... but the costs of any action, cause or matter or issue shall follow the event unless the court or judge shall for good reason otherwise order, for reasons that this is a family mater, the court now hereby orders that each party shall bear their own costs.** 6. In light of the foregoing reasons, I now hereby make the following orders: 7. **The appeal against the judgment of the trial court delivered on 9th August 2023 in Bungoma CMC Succession Cause No. 250 of 2018 be and is now hereby dismissed in its entirety.** 8. **The judgment and orders of the trial court, including the mode of distribution of parcel BUNGOMA/NDALU/890 among the daughters, the grandchildren representing predeceased daughters, and the widow of the deceased, are now hereby upheld and affirmed.** 9. **Each of the parties are to bear their own costs.** **Read dated and Signed** **at BUNGOMA on 23rd JULY 2026.** **E. OMINDE** **JUDGE**