https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12786

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCFA/E003/2025 ZEPHANIA OTUKO VS WILKISTER AWINO OGENDO AND JOAN RODA OTUKO JUDGMENT ***(Arising from the judgement and decree issued by the Chief Magistrate Court at Kisumu in KISUMU CM SUCCESSION NO. 63 OF 2016 on 30th January 2025)*** # BRIEF FACTS * 1. This Appeal arises from the judgment and decree issued by the Chief Magistrate's Court at Kisumu in **Kisumu CM Succession Cause No. 63 of 2016** on 30th January 2025. 2. The Appellant, being dissatisfied with the decision of the trial court, lodged the present appeal contending that material facts were concealed from the court and that he, together with his step-sisters, were excluded from the succession proceedings relating to ***LR No. Kisumu/Muhoroni/97 and Kisumu/Muhoroni/497.*** 3. The Appellant asserts that although the suit properties were registered in the name of his stepmother, the same were acquired by his late father, **Joshua Otuko Ogoya**, and that he therefore possesses a beneficial interest in the properties. He further contends that he had been utilizing the land for farming purposes prior to the succession proceedings and that, as a stepchild, he ought to have been considered in the administration of the estate. * 1. The Respondents opposed the appeal and maintained that the Appellant has no legal entitlement to the estate of the deceased as of right. They further submitted that the Appellant failed to demonstrate that he was a dependant of the deceased within the meaning of the Law of Succession Act and that the succession proceedings were undertaken lawfully. 2. The Appellant further relied on an alleged will made by his late father, contending that the same demonstrates that the suit properties were intended to benefit persons beyond the Respondents and that the trial court failed to consider this aspect of the dispute. # ANALYSIS AND DETERMINATION 1. Having carefully considered the record of appeal, the proceedings before the trial court, and the submissions by the parties, this court notes that the Appellant's claim is founded upon the assertion that the suit properties, though registered in the name of the deceased, were acquired by his late father and that the deceased merely held the same for the benefit of other family members. 2. The Appellant's claim is therefore not limited to the issue of whether he ought to have been included as a beneficiary in the succession proceedings. Rather, it raises a more fundamental question as to the ownership of the suit properties and the nature of the deceased's interest therein. 3. The Respondents, on the other hand, maintain that the properties formed part of the deceased's estate and were therefore available for succession. They deny the existence of any beneficial interest in favor of the Appellant and contend that he lacks the legal standing to challenge the distribution of the estate. 1. From the rival positions adopted by the parties, it is apparent that the dispute before this court concerns more than the administration and distribution of a deceased person's estate. The court is being invited to determine whether the suit properties belonged beneficially to the Appellant's father, whether the deceased held the same in trust, and whether the Appellant has proprietary rights capable of enforcement. 2. Such questions are questions of ownership and beneficial interest in land. They require the court to determine competing proprietary claims before the succession process can properly proceed. 3. The law is settled that a probate court is primarily concerned with identifying the estate of a deceased person, identifying the beneficiaries thereof, and supervising the administration and distribution of the estate. It is not ordinarily the forum for determining contested questions of ownership of property. 4. In **Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR**, the court held that ***“It is not the function of the probate court to*** ***determine ownership of the assets alleged to be estate property. That jurisdiction lies elsewhere”*** 1. In the present matter, any determination by this court on whether the deceased held the suit properties in trust, whether the Appellant's father acquired the properties, or whether the Appellant has an enforceable proprietary interest therein would amount to a determination of ownership rights. Such a determination falls outside the scope of the succession proceedings from which this appeal arises. 2. Consequently, this court finds that the dispute has been presented as a succession appeal, yet at its core lies a contest regarding ownership and beneficial entitlement to land. Until that issue is conclusively resolved by the appropriate forum, it would be inappropriate for this court to make definitive findings concerning the distribution of the properties in question. 3. In the circumstances, the interests of justice dictate that the question of ownership be determined first before the succession proceedings can proceed to their logical conclusion. # DISPOSITION Consequently, 1. This court declines to determine the question of ownership, beneficial interest, or trust in respect of **LR Nos. Kisumu/Muhoroni/97 and Kisumu/Muhoroni/497**, the same being issues falling outside the scope of these succession proceedings. 1. The succession cause file is hereby remitted back to the trial court for further appropriate proceedings. 2. The parties shall be at liberty to pursue the question of ownership and any alleged proprietary interests relating to the suit properties before a court of competent jurisdiction, after which the succession cause may proceed in accordance with the outcome thereof. 3. Given the family nature of the dispute, each party shall bear their own costs. It is so ordered. **Dated and Delivered this 29th July 2026** SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Family Date: 2026-08-01 21:15:21