https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8769

Zebedeo v Nyaruri & another (Civil Appeal E158 of 2024) [2026] KEHC 8769 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8769 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E158 of 2024 AM Okutoyi, J June 18, 2026 Between Zebedeo Appellant and Mauti Nyaruri 1st Respondent Benjamin Bitera Nyaruri & 3 others 2nd Respondent (Being an Appeal from the order delivered by C.N. Sindandi (PM) at SPM Ogembo on the 20th of August 2024 in Misc. Succession Cause No. E033 of 2023) Judgment Background of the case 1.This appeal arises from a succession cause where the respondents herein, who claim to have purchased the land in dispute from the deceased one Monyinyo Onkundi, commenced citation proceedings seeking to compel the appellant to petition for letters of administration. 2.The trial Magistrate in her ruling delivered on 20th of August 2024 ordered the addition of the respondents in the succession cause. The appellant aggrieved by this decision filed this appeal dated 28th August 2024 on the following grounds: That;i.The learned trial Magistrate erred in law and fact by ordering the appellant to include the respondents in the succession proceedings and yet they are not beneficiaries;ii.The learned trial Magistrate erred in law and fact by failing to give the appellant time to be heard and hence the appellant was condemned unheard;iii.The learned trial magistrate erred in law by failing to appreciate there is already an administrator to the estate of the deceased and there has been proceedings over the same;iv.The trial magistrate erred in law and fact as the court’s decision is contrary to law and pursuant to section 51 R (2) of the Law of Succession Cap 160 of the Laws of Kenya (revised 2012);v.The trial magistrate failed to take into consideration section 39 (1) of the Law of Succession act Cap 160 of the Laws of Kenya ( as revised 2012) which gives the order of priority; andvi.The trial magistrate failed to discover the respondents were strangers and had already intermeddled with the property of the deceased against section 154 of the laws of succession act cap 160 of the laws of Kenya (as revised 2012). 3.The appellant prayed for the appeal to be allowed with costs and the ruling of the Senior Principal Magistrate dated 20th August 2024 be set aside and/or reversed. Appellant’s submissions 4.In the written submissions dated 18th February 2026 signed by one Cyrus Anyona, who is the son to the appellant, argued that the appellant has no capacity to be cited as the estate of the deceased has been under the administration of Cyrus from 2017, information that the respondents were fully aware of. 5.He further submitted that the main issue of contention is the addition of the respondents who are not family members of the deceased. He averred that the respondents are not among persons of equal priority on next in priority to the persons cited, and neither are they persons envisaged under the provisions of rule 22(1) of the probate and administration rules to be included in the succession clause. 6.The appellant highlighted that the respondents were directed to be evicted from the interstate property in ELC Kisii Case No. 75 of 2017 and subsequently lost at the court of appeal in E055/2023. The appellant therefore submitted that the proceedings in the succession cause at the lower courts were res-judicata. Respondents’ Submissions 7.The respondents in their written submissions averred that the appeal has been filed by the appellant but it is one Cyrus Anyona Ogwanka who is prosecuting for him without authority. There is no proof of power of attorney to allow Cyrus to prosecute the appeal. As a result of this, the respondent further argued that the appeals lacks merit. 8.The respondents further argued that a citation is not appealable as it is procedural and not a final determination of rights. They further stated that the appellant is not the direct heir to the deceased and he has his own parcel of property. It was further summited that the respondents are purchasers in the property in dispute, have live there for almost 30 years, build houses and engage in livelihood activities. They alleged that the chief’s letter contained in the record of appeal was forged. 9.On 23rd of October 2025, the respondents filed a notice of objection against the appeal on the grounds that the citation was just procedural and not a final decree hence not appealable, citation never affected the rights of beneficiaries and the appellant had not filed the record of appeal within 60 days. 10.On 30th of April 2026, the respondents filed another notice of preliminary objection on the grounds that the appellant lacks locus standi to prosecute this appeal on behalf of the estate of the deceased having not obtained a grant of representation, appeal is incompetent and offends Section 82 (a) of the law of Succession Act, Cap 160. 11.Before we delve into the analysis and determination of this appeal, it is important to address the preliminary objection raised by the respondent dated 30th April 2026. 12.In this objection, the respondent submits that the appellant lacks locus standi to instate and or prosecute this appeal on behalf of the estate of the deceased, having not obtained a grant of representation and that it offends Section 82(a) of the law of succession (Cap 160). 13.Section 82 (a) provides as follows:Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers— (a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative; 14.It is indeed trite law that a person seeking to institute proceedings on behalf of a deceased person’s estate must ordinarily obtain a grant of representation. This principle was highlighted in Trouistik Union International & Another v Jane Mbeyu & Another (1993) KECA 89 (KLR) where the courts held that:“a person may only sue on behalf of an estate of a deceased person if she is appointed a legal representative of the Deceased by Letters of Administration” 15.Be that as it may, it is important to contextualize this current appeal which stands on a different footing. The appellant was the citee in the proceedings before the subordinate court. The impugned orders were directed against him and affected his legal interests. This courts therefore holds the view that the appellant has a right to approach the court as an aggrieved party challenging a decision made against him. 16.A party whom a court decision has been issued cannot be denied the right of appeal merely because he does not hold a grant of representation. This court therefore holds that the appellant possesses the requisite standing to prosecute this appeal. 17.Closely tied to the above preliminary objection is the issue raised by the respondent that as much as the appeal was filed by one Zebedeo Ogwanka Onkundi, the one prosecuting the appeal is his son Cyrus Anyona Ogwanka without authority, there being no power of attorney. The respondent argues that the father is alive and competent to prosecute the appeal and the son cannot purport to act as an advocate for his father. 18.In order to make a determination on this issue, it is important to analyse the scope of representation of the son Cyrus. The memorandum of appeal which is the substantial pleading was deponed and filed by Zebedeo. However, the record of appeal and submissions have been signed by Cyrus. 19.From the trial proceedings this court notes that Cyrus notified the court that his father is too old to appear in person and he did most of the appearances. 20.This court notes that the pleadings which are the foundation and mandatory frameworks on the petition were signed by the Father Zebedeo. 21.This court therefore finds that indeed there are procedural irregularities in the son’s Cyrus participation but no prejudice was occasioned to the respondents. This court hereby invokes Article 159(2) (d) of the Constitution to support this determination guided by the trite principle that procedure should not defeat substantive justice where no prejudice is demonstrated. 22.The respondent further raised the issue that citations are not appealable. This court notes that citation proceedings are undertaken pursuant to the Law of Succession Act and the Probate and Administration Rules. They form part of the succession proceedings and are subject to supervisory and appellate jurisdiction by the High Court. 23.The order in question was not a mere administrative direction but it determined substantive questions touching on the participation of parties in the citation proceedings. 24.Section 50(1) of the Law of Succession provides that;“An appeal shall lie to the High Court in respect of any order or decree made by a resident magistrate in respect of any estate” 25.The learned magistrate gave an order to add the respondents as citors. This is therefore subject to the supervisory role of the high court. I therefore find no merit in this argument. 26.Having dispensed with the main points of objection raised by the appellant, this court will now summate the issues for consideration in this appeal Analysis and Determination 27.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 28.Similarly, in Peter v Sunday Post Ltd (1958) EA 424, The court stated that;“Whilst an appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand, this jurisdiction is exercised with caution.” 29.I have independently re-valuated and analyzed the appeal and trial record in its entirety. Having considered the trial and appeal record as well as submission and pleadings, the following are the main issues for the determination of this court.a.Whether the respondents, posed sufficient interest to institute citation proceedingsb.Whether the existence of a limited grant ad litem issued in 2017 to the appellant’s sons rendered the citations proceedings incompetentc.Whether the learned magistrate exercised proper discretion in the orders issued Whether the respondents posed sufficient interest to institute citation proceedings 30.The appellant has argued that the respondents are strangers to the estate and are therefore incapable of commencing the citation proceedings. 31.This court notes that citation proceedings are governed by the Probate and Administration rules and their main purpose is to compel persons entitled in priority to either petition for a grant or renounce such entitlement. 32.This history of the land in dispute is that the deceased died in 1980 intestate and no grants of administration had been taken out until later on in 2017 when the son Cyrus obtained limited grant ad litem for purposes of prosecuting a suit. 33.The respondents on the other hand claim to have bought this land, built and resided in the area for close to 30 years. A perusal of the judgment from the ELC indicates that they are unable to regularize their interest in the land in the absence of a duly constituted legal representative of the estate and succession exercise. 34.This court therefore notes that the respondents are not asserting inheritance rights rather they seek appointment of a personal representative capable on answering their claim. I therefore don’t accept the broad proposition advanced by the appellant that only blood relatives may initiate proceedings intended to trigger the administration of an estate. 35.Persons asserting legitimate claim against an estate may possess sufficient interest to move the court where no substantive administration has been undertaken. Accordingly, I am persuaded that the initiation of the citation proceedings by the respondents was procedural in the prevailing circumstances. Whether the existence of a limited grant ad litem issued in 2017 to the appellant’s son rendered the citations proceedings incompetent 36.A perusal of the record reveals that in the year 2017, a letters of administration Ad Litem were issued to the son Cyrus Anyona Ogwanka. The nature of grant ad litem is well understood. It is for a specific purpose and does not confer general powers of administration of an estate. 37.This court therefore does not agree with the appellant’s contention that the citation proceedings were unnecessary merely because the limited grant existed. 38.In this particular case, the deceased is said to have died in 1980. By the time the citation proceedings were instituted in 2023. More than four decades had lapsed without a substantive grant being obtained. 39.In the prevailing circumstances therefore, the respondent cannot be faulted for seeking legal process aimed at securing proper administration of the estate. Whether the learned magistrate exercised proper discretion in the orders issued 40.This lies at the heart of this appeal with two competing positions. From the record at the lower courts, it is clear that the appellant’s son sought to be enjoined in the proceedings on the basis that he is the administrator of the estate. It is not clear whether that application was concluded and determined but that alone ought to have been given credence before issuing the orders. 41.It is trite law that joinder of parties is intended to ensure all persons necessary for the adjudication of disputes affecting the interests are made. This was reiterated by the Supreme Court in the case of Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 others where the importance of participation by parties whose interest are likely to be affected by court proceedings was highlighted. 42.This court opines that once the subordinate court became aware that a court recognized representative of the estate existed and had expressly sought joinder then it became incumbent upon the court to consider whether his participation was necessary for the complete determination of the matter at hand. Failure to adequately address that question amounted to an improper exercise of judicial discretion. 43.Having carefully analysed the record at the trial court, I find that there was inadequate consideration of the legal effect of the existing grant ad litem and the application for joinder by its holder. 44.The appellant also alleges that he was not given audience to be heard hence the appeal was condemned unheard. A perusal of the lower court record indicates a two-word agreement to the addition. This is to be looked at in the context that the appellant was unrepresented, elderly and high probability did not understand what he was agreeing to. This court is of the view that the Learned Trial Magistrate ought to have given the appellant a hearing to make an informed decision. I therefore agree with the appellant on this point. 45.In the case of Mbogo & Another v. Shah(1968) EA 93 the courts held that”“An appellate court will interfere with the exercise of discretion where it is shown that the court misdirected itself, considered irrelevant matters or arrived at a plainly wrong conclusion.” 46.Having analysed the record and evidence adduced, it is clear that there are several mishaps in the orders in the citation proceedings including lack of an adequate fair trial for the appellant and inadequate consideration of the administrator. As a result, the court finds partial merit in the appeal. 47.The court however declines to hold that the respondents lacked capacity to institute proceedings merely because they were not relatives of the deceased. Disposition.Accordingly, this court orders that the appeal is allowed to the following extent;a.The order delivered by Hon. C. N. Sindani (PM) at SPM Ogembo on the 20th of August 2024 in Misc. Succession Cause No. E033 of 2023 is hereby set asideb.The citation proceedings are hereby remitted to the subordinate courts, before a different magistrate, for fresh consideration and hearing of all interested parties.c.For avoidance of doubt, this court has not determined the validity of the respondent’s claim to the disputed property.d.Each party shall bear its own costs of the appeal.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026A.M. OKUTOYIJUDGEIn the presence of:Mr. Sagwe for the RespondentN/A- AppellantRuth Mokeira-Court Assistant