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Court of AppealDismissedCourt of Appeal Civil Appeal (Nyeri) arising from Meru High Court Succession Cause No. 499 of 2011

Makara v Kirichu & 7 others (Civil Appeal 76 of 2020) [2025] KECA 1221 (KLR)

Court of Appeal of Kenya
4 July 2025
4,485 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that hiding estate assets from a succession court can justify reviewing and redistributing an estate, even after a notice of appeal is filed.

What this practically means

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Executive summary

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This Court of Appeal at Nyeri appeal (Lesiit, Ali-Aroni and Odunga, JJ.A) arose from a ruling of Mabeya, J. in Meru Succession Cause No. 499 of 2011, in which the High Court reviewed its own judgment of 30th May 2019 distributing the estate of Kirichu Makara and rectified the Certificate of Grant. The appellant, the administrator and a beneficiary, challenged the review on three grounds: that a notice of appeal had been filed and barred review; that the Order 45 conditions for review were not met; and that the redistribution ignored inter vivos gifts under section 42 of the Law of Succession Act and was substantively unfair. The Court framed three issues: whether the review application was properly before the trial court, whether grounds for review existed, and whether the post-review distribution was fair. Relying on Kamau Ndirangu and Yani Haryanto, it held that a mere notice of appeal does not constitute preferment of an appeal and does not bar review, and that the bar could not extend to applicants who had filed no notice. On the merits, the respondents proved the appellant had not disclosed that parcels 1727 and 1728 were registered in his name, amounting to material non-disclosure warranting review under sections 47 and 73 of the Law of Succession Act. The Court found the redistribution considered all relevant factors, including parcel size, location and habitability, and was fair to all beneficiaries. The appeal was dismissed in its entirety, the ruling of the trial Judge upheld, and, as a family matter, no order as to costs was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for review was properly before the trial court
  2. 2.Whether there were grounds to review the impugned judgment
  3. 3.Whether the distribution post the review was fair

Key legal issues

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01

Whether a pending or unprocedurally withdrawn notice of appeal ousts the High Court's jurisdiction to review its own judgment under Order 45

Holding

No. The mere filing of a notice of appeal does not amount to preferring an appeal, and an appeal is only instituted when the record of appeal is lodged; the Order 45 bar does not apply to applicants who filed no notice of appeal.

Reasoning

The Court relied on Kamau Ndirangu and Yani Haryanto: an appeal is not instituted until the record of appeal is lodged, fees paid and security provided. A notice of appeal cannot be deemed withdrawn by mere intimation without compliance with the Court of Appeal Rules, but that procedural defect did not assist the appellant, because a mere notice does not bar review. Further, not all review applicants had filed notices, so the caveat in Order 45 could not extend to them.

p. 8
02

Whether material non-disclosure by the administrator justified review of the distribution judgment

Holding

Yes. The appellant, as administrator, failed to disclose that parcels 1727 and 1728 were registered in his name, which was material non-disclosure capable of affecting the outcome, grounding review under sections 47 and 73 of the Law of Succession Act.

Reasoning

The respondents proved by certificate of search that parcels 1727 and 1728 stood in the appellant's name, and he did not contest it, nor that parcels 1725 and 1726 were on a steep slope unfit for construction. Because the suit arose from a Succession Cause, the Court found good grounds for review based on material non-disclosure, invoking the court's wide jurisdiction under sections 47 and 73 of the Law of Succession Act to make orders necessary to meet the ends of justice.

p. 8
03

Whether the redistribution of the estate after review was fair

Holding

Yes. The learned Judge considered all relevant factors, including parcel sizes, location, habitability and prior registrations, and redistributed the estate fairly among the beneficiaries.

Reasoning

The trial Judge had regard to parcels 1727 and 1728 registered in the petitioner's name, properties registered in the names of other beneficiaries, the contested nature of plot 1723, and the sloppy nature of plot 1726. On first-appeal standards (Mbogo v Shah; Jabane v Olenja) the Court of Appeal would not disturb that exercise of discretion absent wrong principle or injudicious exercise. The Court was satisfied the redistribution was fair to all beneficiaries and dismissed the appeal.

p. 9

Legal principles established

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  • The mere filing of a notice of appeal does not constitute preferment of an appeal and does not bar the High Court from entertaining an application for review before the appeal is actually filed; a notice of appeal is not deemed withdrawn by mere intimation.
  • Where some only of the applicants have filed a notice of appeal, the Order 45 bar on review by parties who have appealed does not extend to co-applicants who did not file notices of appeal.
  • In a first appeal, the Court re-evaluates the evidence and will only depart from trial court findings where they were not based on the evidence, where wrong principles of law were applied, or where discretion was exercised injudiciously.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The ruling and order of the trial Judge dated 14th April 2020 reviewing the judgment of 30th May 2019 and redistributing/rectifying the Certificate of Grant is upheld
  3. 3.No order on costs, this being a family matter

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Meru
Succession Cause No. 499 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules against the ruling in a Succession Cause (no specific constitutional/statutory provision quoted in the judgment)

Relief refused

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Setting aside the ruling of 14th April 2020 and reinstating the judgment of 30th May 2019

The Court found the trial Judge took into account all relevant factors and fairly redistributed the estate; the appeal had no merit

p. 9

Costs

We make no order on costs, this being a family matter.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances, we find that this appeal has no merit and is dismissed in its entirety.
p. 9disposition - dismissal of appeal
In conclusion, the ruling and order of the trial Judge dated 14th April, 2019 is upheld. We make no order on costs, this being a family matter.
p. 9final orders - ruling upheld and costs
despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review
p. 8review jurisdiction despite notice of appeal
we find that good grounds existed for review of the learned Judge’s judgment on the basis of material none disclosure that could afiect the outcome of the suit
p. 8review grounded on material non-disclosure
…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.
p. 5duty of first appellate court

Issues in the judgment

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minor

The judgment inconsistently dates the impugned ruling: the opening paragraph and final orders refer to 14th April 2020, while paragraph 9 and the conclusion refer to a ruling dated 14th April 2019.

minor

Internal inconsistency in the judgment's recital of the notice of appeal: it records that the 1st, 3rd, 4th and 8th respondents along with Peter Kimani Kirichi lodged a notice of appeal dated 14th July 2019 pursuant to a notice dated 20th June 2019, dates that appear reversed.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Makara v Kirichu & 7 others (Civil Appeal 76 of 2020) [2025] KECA 1221 (KLR)", Case Analysis (2025). Court of Appeal Civil Appeal (Nyeri) arising from Meru High Court Succession Cause No. 499 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1221/eng@2025-07-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.