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Court of AppealPartially AllowedCivil Appeal (Nairobi) – appeal from Nairobi HCSC No. 2989 of 2004, In the Matter of the Estate of Muthoni Mungai alias Esther Gathoni (Deceased)

Machua & another v Nduta (Civil Appeal 45 of 2019) [2025] KECA 1814 (KLR)

Court of Appeal of Kenya
7 November 2025
3,380 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that probate courts can resolve trust disputes over estate land, and annulled a flawed distribution.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, Ngugi and Tuiyott, JJ.A) allowed an appeal against a decision of Ougo, J in Nairobi HCSC No. 2989 of 2004 (Estate of Muthoni Mungai alias Esther Gathoni, deceased). The dispute concerned land parcel Dagoretti/Mutuini/92, registered in the deceased's name 'as trustee for herself and her sons' and five other named persons. Objectors in the succession cause alleged the administrators failed to disclose this trust and that they had purchased portions of the land from trust beneficiaries, occupying since 1981. The High Court held that, as a family court, it lacked jurisdiction over trust questions and referred the objectors to the Environment and Land Court, dismissing their summons for revocation of grant. The Court of Appeal framed three issues: the probate court's jurisdiction over the trust question, the proportion of the property constituting the deceased's free property, and the appellants' purchaser claims. Holding that a probate court may determine trust questions inextricably bound with identifying the deceased's free property and the persons beneficially entitled, the Court followed its decisions in Bena Nafula Makana and Kabata v Mbugua. It found the administrators had non-disclosed material facts by treating the whole property as the deceased's free property, that trust property is unavailable for distribution to heirs, and that the appellants' purchaser interests required evidential inquiry. The appeal was allowed: the High Court judgment and certificate of confirmation of grant were set aside and annulled, subdivisions and transfers were cancelled, and the matter was remitted to the High Court Family Division. Each party was directed to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the High Court, dealing with a succession cause, had jurisdiction to determine the question whether the deceased held the suit property in trust for herself and others
  2. 2.What proportion of the suit property comprised the free property of the deceased and was available for distribution to her beneficiaries
  3. 3.Whether the court could determine the portions that the appellants had purchased from the beneficiaries of the trust held by the deceased and were therefore a liability on the estate

Key legal issues

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01

Jurisdiction of the probate court over trust questions

Holding

The trial court erred in holding that it lacked jurisdiction to determine whether the deceased held the suit property in trust; the Law of Succession Act confers wide authority on the High Court sitting as a probate court, and it may determine trust issues bound up with identification of the estate's assets

Reasoning

While land disputes fall under Article 162(2)(b) within the Environment and Land Court's jurisdiction, sections 47, 71 and 76 of the Law of Succession Act empower the High Court as probate court to entertain any dispute under the Act, satisfy itself on beneficial entitlement when confirming grants, and revoke grants for concealment of material facts. Following Bena Nafula Makana and Kabata v Mbugua, the court held trust questions inextricably bound with identifying free property must be determined in the succession cause.

p. 5
02

Non-disclosure of material facts by administrators

Holding

The administrators dealt with the suit property as though it was entirely the free property of the deceased, failing to disclose that she was registered as trustee for herself and five others; the trial court erred in finding that non-disclosure was not established

Reasoning

The certificate of official search showed the deceased registered as proprietor 'as trustee for herself and her sons Samuel Saru, Kanja Kamau, Jane Mbaire, David Mungai and Nector Ndicu'. Her free property comprised only a proportion of the land. Administrators had a duty to disclose this, and the trial court should have noted it from the documents before it.

p. 4
03

Purchasers' interests from trust beneficiaries

Holding

The trial court erred in declining to consider the appellants' interests as purchasers in possession of plots bought from trust beneficiaries, which were liabilities on the estate requiring evidence

Reasoning

The appellants alleged purchases as far back as 1981 from persons whose shares were held in trust by the deceased. These claims, and the extent of the deceased's share, required the taking of evidence by the trial court, and the matter was remitted for that purpose.

p. 6

Legal principles established

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  • A court seized of a succession matter may determine trust questions that arise when ascertaining the estate's assets where the dispute is inextricably bound with identification of the deceased's free property and of the persons beneficially entitled
  • Property held by the deceased as trustee for others is not the deceased's free property and is not available for distribution to the deceased's heirs until the trust question is determined

Court orders

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  1. 1.The judgment of Ougo, J in Nairobi HCSC No. 2989 of 2004 dated 9th November 2017 is set aside
  2. 2.The certificate of confirmation of grant issued to Elizabeth Wambui and Samuel Saru, later amended to include Jacinta Nduta as sole administrator, is annulled
  3. 3.The distribution of the suit property on the basis of the said certificate of confirmation is set aside and any subdivisions and transfers pursuant thereto are cancelled
  4. 4.The matter is remitted to the High Court at Nairobi (Family Division) for hearing and determination of the issue of trust and the respective claims of the appellants as purchasers from the beneficiaries of the trust
  5. 5.Any party who may be a beneficiary of the trust be served with the pleadings and notice of the hearing before the High Court
  6. 6.Each party bears its own costs of the appeal

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Nairobi (Family Division)
Nairobi HCSC No. 2989 of 2004 – Estate of Muthoni Mungai alias Esther Gathoni (Deceased)
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act; appeal from the High Court sitting as a probate court under the Law of Succession Act

Relief refused

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Direct determination by the Court of Appeal of the size of the deceased's estate and the appellants' claims as creditors

These matters required the taking of evidence by the trial court; the appeal was allowed only to the extent of remitting the matter to the High Court

p. 6

Costs

Each party bears its own costs of the appeal

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.

We accordingly find that the appellants’ appeal is merited, and we hereby allow it.
p. 6Disposition – appeal allowed
The judgment of Ougo, J in Nairobi HCSC No. 2989 of 2004 dated 9th November 2017 is hereby set aside;
p. 6Final orders – judgment below set aside
The certificate of confirmation of grant issued to Elizabeth Wambui and Samuel Saru (both deceased), later amended to include the respondent, Jacinta Nduta as the sole administrator, is hereby annulled;
p. 6Final orders – annulment of certificate of confirmation
The distribution of the suit property on the basis of the said certificate of confirmation is hereby set aside and any subdivisions and transfers pursuant thereto are cancelled;
p. 6Final orders – cancellation of subdivisions and transfers
The matter is hereby remitted to the High Court at Nairobi (Family Division) for hearing and determination of the issue of trust and the respective claims of the appellants as purchasers from the beneficiaries of the trust held by the deceased
p. 6Final orders – remittal to the High Court
Property held by the deceased as trustee for others does not constitute the deceased’s free property, and is not available for distribution to the deceased’s heirs.
p. 5Trust property and free property
With respect to costs, we direct that each party bears its own costs of the appeal.
p. 6Costs

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, "Machua & another v Nduta (Civil Appeal 45 of 2019) [2025] KECA 1814 (KLR)", Case Analysis (2025). Civil Appeal (Nairobi) – appeal from Nairobi HCSC No. 2989 of 2004, In the Matter of the Estate of Muthoni Mungai alias Esther Gathoni (Deceased). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1814/eng@2025-11-07

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