Bena Nafula Makana & 2 others v Nyaoro Akoth Muka Crescentia & 8 others [2019] KECA 755 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that family members hidden from succession proceedings can have the land grants revoked and their trust claims heard in the same case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in declining jurisdiction to entertain the appellants' claim of trust within the succession proceedings
- 2.Whether the High Court erred in holding that the appellants should take proceedings elsewhere to prove the existence of a trust
- 3.Whether the appellants proved grounds for revocation of the Grant of letters of administration
Key legal issues
#Jurisdiction of the succession court over trust claims
The succession court has jurisdiction to determine claims of trust, including customary trust, in relation to estate property; declining jurisdiction on the basis that the applicants should sue elsewhere was erroneous.
Section 47 of the Law of Succession Act confers jurisdiction to entertain any application and determine any dispute under the Act. Rule 58 of the P&A Rules recognises litigious succession proceedings, and Rule 63(1) imports Civil Procedure Rules provisions. Whether an issue can be conveniently determined in succession proceedings is a question of convenience, not jurisdiction. Given the family relationship, long occupation of the land, and prior proceedings, the appellants were entitled to be heard in the succession proceedings.
Fused jurisdiction and complete determination of disputes
The court exercising fused legal and equitable jurisdiction must determine all matters in dispute between the parties completely and finally, avoiding multiplicity of proceedings.
The appellants claimed as trust beneficiaries with equitable interests in the estate; the revocation application was aimed at facilitating the hearing of that claim. Since law and equity are fused, the succession court should have addressed the trust claim rather than directing the appellants to file separate proceedings.
Revocation of Grant for non-disclosure and lack of notice
Non-disclosure of the appellants' existence and interest in the succession documents, and the holding of the succession proceedings without their knowledge, justified revocation of the Grant.
The LSA and P&A Rules require full disclosure in succession proceedings, including disclosure of dependants and persons interested in the estate. The court may investigate any relevant matter on its own motion. Given these requirements, it was improbable that the succession court would have made or confirmed the Grant had it been aware of the correct facts, so revocation was warranted.
Trusts as encumbrances on registered land
Registration of land in a proprietor's name does not extinguish trust obligations; a transferee without valuable consideration takes subject to the transferor's unregistered rights, and trusts, including customary trusts, are overriding interests.
Under the proviso to section 28 and section 29 of the repealed Registered Land Act, a registered proprietor remained subject to trustee duties, and a gratuitous transferee took subject to the transferor's unregistered interests; these provisions are now in sections 25(2) and 27(1)(a) of the Land Registration Act. Section 30 RLA and section 28 LRA make rights of persons in occupation and trusts, including customary trusts, overriding interests. The court noted this without determining the trust claim itself.
Legal principles established
#- The High Court, in exercise of its jurisdiction under section 47 of the Law of Succession Act, may determine questions of trust arising in succession proceedings; it is an error to decline jurisdiction on the ground that the claimant should sue the estate separately.
- The jurisdiction of the court at law and its equitable jurisdiction are fused, and the court must ensure all matters in dispute are completely and finally determined and multiplicity of proceedings avoided.
- Where a Grant is obtained without disclosure of persons interested in the estate and without notice to them, the applicants for revocation have proved a case for revocation.
Court orders
#- 1.The appeal is allowed and the ruling and orders of the High Court are set aside
- 2.The appellants' application for revocation of Grant dated 10th October, 2012 is allowed
- 3.The Grant of letters of administration intestate granted to Nyaoro Akoth Muka Crescentia on 4th June, 2002 and confirmed on 4th March, 2003 as they relate to land titles No Bukhayo/Malanga/917 and Bukhayo/Malanga/918 are revoked
- 4.The time for filing objection, answer and cross-petition by the appellants under Rule 17 of the P & A Rules is extended by thirty days from the date of the judgment
- 5.The High Court to hear any dispute relating to the estate of Jacob Muka Makana and determine it in accordance with the law
- 6.The costs of the application in the High Court and costs in this appeal shall abide the determination of the succession proceedings by the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- HC Succession Cause No. 4 of 2001 (Ruling dated 12th February 2015)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under Article 164 of the Constitution and section 47 of the Law of Succession Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It follows that, and we find that, the court erred in declining jurisdiction to entertain the application. Since the court had jurisdiction to entertain the claim in the succession proceedings, the application should not have been dismissed merely on a technicality of procedure.
The jurisdiction of the court at law and its equitable jurisdiction are fused. The court exercising the fused jurisdiction is required to exercise its jurisdiction in every cause or matter before it so as to ensure, as far as possible, that all matters in dispute between the parties are completely and finally determined and a multiplicity of legal proceedings with respect to any of those matters is avoided.
We are satisfied that the appellants proved a case for the revocation of the Grant.
Whether or not a court can deal with litigious proceedings is not a question of jurisdiction of the court. Rather, it is a question of whether or not the issue in dispute can be conveniently determined in succession proceedings or in another forum.
(i) The appeal is allowed and the ruling and orders of the High Court are set aside.
(iii) The Grant of letters of administration intestate granted to Nyaoro Akoth Muka Crescentia on 4 th June, 2002 and confirmed on 4th March, 2003 as they relate to land titles No Bukhayo/Malanga/917 and Bukhayo/Malanga/918 which are sub-divisions of the original land title No. Bukhayo/Malanga/211 are revoked.
(vi) The costs of the application in the High Court and costs in this appeal shall abide the determination of the succession proceedings by the High Court.
Issues in the judgment
#The judgment inconsistently records the date of issuance of the Grant to the 1st respondent, once as 2002 and once as 2001.
The judgment inconsistently renders the name of Jacob Muka Makana, at times 'Jacob Muka Mukana'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muna (Suing as the Legal Representative of the Late - Ann Wambui Muna) & 5 others v Boscardin & 5 others (Environment and Land Case 27 of 2020) [2026] KEELC 160 (KLR)[2026] KEELC 160 (KLR)21 Jan 2026
- Machua & another v Nduta (Civil Appeal 45 of 2019) [2025] KECA 1814 (KLR)[2025] KECA 1814 (KLR)7 Nov 2025followed
Cite this brief
#Cite this brief
Caselaw, "Bena Nafula Makana & 2 others v Nyaoro Akoth Muka Crescentia & 8 others [2019] KECA 755 (KLR)", Case Analysis (2019). Civil Appeal No. 70 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/755/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.