Charity Mukwanyaga Mukungi & 1 other v Nicholas Kithuci Nyaga & 1 other

an application for revocation of the grant issued to the petitioner, Esther Cianjoka M’Mantu, on grounds that it was obtained fraudulently by making of false statements or by concealment of material facts. While the application was pending before the High Court, the deceased’s property Mwimbi/ Chogoria/386 was subdivided into three resultant parcels namely; Mwimbi/Chogoria/5088, 5089 and 5090. Parcel number 5088 was registered to the 2nd respondent, while parcels 5089 and 5090 were registered in the names of Esther Cianjoka M’Mantu. 4. In a judgment (Makau, J.) dated 24th September, 2014, the grant earlier issued to the petitioner, Esther Cianjoka M’Mantu, was revoked. The petitioner, Esther Cianjoka M’Mantu and the appellants, Charity Mukwanyaga Mukungi and Ernest Kaburu, were appointed as joint administrators of the estate of the deceased. The court ordered the titles that arose out of the sub-division of the original parcel No. Mwimbi/Chogoria/386, specifically parcels No. Mwimbi/Chogoria/5090 and 5089, be cancelled, and that parcel No. 386 do revert to the name of the deceased. Parcel No. 5088 was not mentioned or addressed by the said court order. Further, by the time this order was made, the petitioner had already sold parcel number 5089 to a third party by the name Isaac Kiogora Marete (1st respondent), vide an agreement dated 26th November, 2012. 5. On 11th December, 2014, the appellants took out summons for confirmation of the new grant, and proposed that the petitioner, Esther Cianjoka, have life interest on two (2) acres of the original parcel No. Mwimbi/Chogoria/386, while 0.5 acres of the said parcel be retained by the appellants. The petitioner, as well as the 1st respondent were not agreeable to this proposal, and they filed two separate afidavits of protests. The 1st respondent argued that he had lawfully purchased parcel No. 5089 from the petitioner, and that he had acquired title over the said property. The petitioner on her part averred that Charity Mukwanyaga was married, while Ernest Kaburu had benefited from seven (7) acres of land given to him as gift inter vivos by the deceased during his lifetime. 6. The petitioner died during the pendency of the proceedings. She was not blessed with children. The appellants, who were the remaining administrators, proposed that the suit property be disposed, Kshs. 1,300,000 be deposited with the firm of Jesse Kariuki who was their advocate, as legal fees, and the remaining proceeds be distributed equally among the surviving children of the deceased. 7. The application for confirmation of the grant, together with the protests were disposed of by way of written submissions. Limo J., in a judgment delivered on 11th May, 2017, ruled in favour of the 1st respondent. The learned Judge held that the 1st respondent was an innocent purchaser for value, since he purchased parcel No. 5089 from the deceased’s widow after the grant issued to her had been confirmed, even though the said grant was later revoked. The learned Judge further held that no evidence was led to establish that the said sale transaction was tainted with fraud. The learned Judge ordered the 1st respondent retain parcel No. Mwimbi/Chogoria/5089, while the remaining portion of the estate, Mwimbi/Chogoria/5090, be shared equally among the deceased’s beneficiaries. 8. Aggrieved by this decision, the appellants filed the instant appeal where they faulted the learned Judge for: purporting to sit on appeal on the ruling by Makau, J. delivered on 24th September, 2014; failing to acknowledge that in the order issued by Makau, J., the resultant titles issued after the original parcel No. Mwimbi/Chogoria/386 was subdivided had all been cancelled, and the said parcel had reverted to the deceased’s name; failing to note that there existed conservatory orders with regard to the deceased’s parcel No. 386; assuming that the title to parcel No. 5088 was not cancelled, yet the court order directed that the whole parcel No. 386 revert back to the deceased; failing to find that all beneficiaries of the deceased’s estate were not involved when the petitioner originally made the application for grant of letters of administration intestate, and that the petitioner was only entitled to a lifetime interest to the deceased’s estate, and could therefore not dispose of the same to a third party; finding that the 2nd https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2118/eng@2025-11-28 2

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respondent, Nicholas Kithuci, was lawfully bequeathed parcel No. 5088, when he was not a known beneficiary of the deceased; and lastly, for making a finding that was against the rules of natural justice and fairness. 9. The appeal was canvassed by way of written submissions and highlighted in oral submission made during the plenary hearing. Counsel for the appellants, Mr. Kariuki, submitted that by virtue of the order issued by Makau, J., in the decision delivered on 24th September, 2014, parcel No. Mwimbi/ Chogoria/5089 ceased to exist, and was therefore not available for allocation to the 1st respondent. He submitted that the said court order directed that the said parcel, and all other resultant parcels, revert back to the original parcel of land belonging to the deceased. Counsel maintained that the court, in making its finding in the decision that provoked this appeal, sat on appeal and upset a decision of a court of equal status, which had nullified titles to the parcels of land that were awarded to the respondents. 10. Counsel for the 1st respondent, Ms. Kaaria, in rebuttal, submitted that parcel No. 5088 was sold by the petitioner to the 1st respondent on 26th November, 2012, two years after the grant issued to the petitioner was confirmed. She urged that by the time the petitioner sold the said parcel to the 1st respondent, the title to said parcel was registered in the petitioner’s name. She explained that the judgment by Limo, J. did not amount to sitting on appeal with respect to the ruling issued by Makau, J, and that once the grant was revoked, the estate was subjected to redistribution, upon the appellants’ application for confirmation of the new grant. It was her submission that the 1st respondent purchased parcel No. 5088 on 26th November, 2012, way before the conservatory orders were issued on 20th June, 2013, and that the transaction was protected by Section 93 of the Law of Succession Act. She reiterated that no evidence was led to show that the transfer of parcel No. 5088 to the 1st respondent was marred by any fraud or irregularity. She asserted that by the appellants’ own admission, the deceased had already provided for them in his lifetime, and that the suit property was meant for the exclusive possession of his widow, the petitioner. She urged that the petitioner was well within her right to dispose of the suit property upon confirmation of the grant issued to her. 11. This being a first appeal, our duty was well stated in Selle and Another v. Associated Motor Boat Co. Ltd [1968] EA 123, where the court observed as follows: “ An appeal to this Court from a trial by the High Court is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact, if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mhamed Sholan, (1955) E.A.C.A. 270)”. 12. We have carefully re-evaluated the evidence adduced before the trial court in light of the grounds of appeal and the submissions made before us. The issues that came to the fore for determination is, firstly, whether Limo, J. erred in law and in fact when he is alleged to have overruled the decision of Makau, J. in respect of the grant of letters of administration intestate that were revoked by the latter Judge. The second issue for determination is whether the 1st respondent is entitled to parcel No. Mwimbi/ Chogoria/5089. The third issue for determination is what orders are to issue in respect of this appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2118/eng@2025-11-28 3

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13. Regarding the first issue for determination, it is important for this Court to set out the chronology of the proceedings that took place before the Probate Court so that the issues argued on this appeal may be placed in its proper perspective. The deceased’s widow, Esther Cianjoka M’ Mantu petition the Principal Magistrate’s court at Chuka to be issued with a grant of letters of administration intestate in respect of the estate of the deceased. The only asset listed to belong to the estate of the deceased was a parcel of land then registered as Mwimbi/Chogoria/286. The grant was issued to the said widow on 2nd August, 2010 and confirmed on 1st September, 2010. 14. Upon obtaining the certificate of confirmation of grant, the widow sold one acre comprised of the above parcel of land to the 2nd respondent. The said parcel of land was subdivided into three portions with resulting titles numbered as Mwimbi/Chogoria/5088, 5089 & 5090. Parcel No. 5088 was transferred to the 1st respondent while the widow retained parcels Nos. 5089 & 5090. On 26th November, 2012, the widow sold parcel No. 5089 to the 2nd respondent. The title to the parcel of land was transferred to the 2nd respondent. 15. Meanwhile, some of the children of the deceased by his other marriage, the appellants in this appeal, lodged an objection to the issuance of grant of letters of administration intestate to the widow. The objection was in form of an application for revocation of grant filed before the Meru High Court in Succession Cause No. 101 OF 2010. After hearing the parties, the High court (Makau, J.) in a judgment delivered 24th September, 2014 revoked the grant issued to the widow and instead issued a new grant to the widow and the appellants to be joint administrators of the deceased’s estate. The court further ordered that the subdivisions made in respect of the original parcel No. Mwimbi/Chogoria/386 be revoked. The learned Judge specifically ordered that titles in respect of parcel Nos.Mwimbi/ Chogoria/5089 and 5090 issued to the widow be cancelled and be reverted back to the name of the deceased so that a redistribution could be done by the court. 16. It is pertinent to point out that, for some reasons that are not apparent from the record, the learned Judge in his decision excluded parcel No. 5088 that was transferred to the 2nd respondent from the order of cancellation. The appellants did not challenge this decision either by filing an application for the review or appealing against the decision. In subsequent proceedings, although the appellants proceeded as if the title in respect of parcel No. 5088 had been cancelled, they did not pursue the 2nd respondent in the proceedings. That was the one of the reasons why, during the hearing of the appeal, the court inquired from the appellants if they had abandoned their challenge to the transfer of the particular parcel of land to the 2nd respondent. Counsel for the appellants told the court that indeed that was the case. This observation was made in light of the fact that the 2nd respondent had not participated in the proceedings before Limo J. In any event, the issue of the transfer of Parcel No 5088 to the 2nd respondent was res judicata and could not be re-litigated before Limo J. 17. During the pendency of the case regarding the redistribution of the estate of the deceased, the widow of the deceased died. She was not blessed with any children. The only parties left in the case were the appellants and the 1st respondent. It was this part of the dispute that was referred to Limo, J when the suit was transferred from Meru High court to Chuka High court for hearing and disposal. 18. Upon hearing the parties, Limo, J held that the 1st respondent was a purchaser for value and was legally registered as the owner of the subdivided portion of land registered as parcel No. 5089 from the widow of the deceased after she had obtained grant of letters of administration intestate that had been duly confirmed. The learned Judge held that there was no evidence that the transaction was tainted by fraud. The learned Judge ordered the remainder, being parcel No. Mwimbi/Chogoria/5090 be transferred to the appellants for distribution among the beneficiaries. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2118/eng@2025-11-28 4

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19. It was this decision that provoked the present appeal. In answer to the first issue for determination, upon re-evaluation of the facts of this case, we hold that the latter Judge at Chuka did not err in law when he made the determination that he did. The issue before the learned Judge was whether the 1st respondent had lawfully purchased the parcel No. Mwimbi/Chogoria/5089 from the widow of the deceased. It is that issue that the learned Judge determined. As observed earlier in this judgment, it was curious that the appellant did not challenge the finding made by Makau, J. when he upheld the transfer of parcel No. Mwimbi/Chogoria/ 5088 to the 2nd respondent. Indeed, the appellant confirmed to this Court during the hearing of this appeal that they did not pursue the cancellation of the title issued to the 2nd respondent pursuant to the said transfer that was made by the widow of the deceased. 20. The question that this Court grappled with is why the appellants chose to pursue the cancellation and non- recognition of the sale and transfer that was made to the 1st respondent by the widow of the deceased using the same grant that was issued and confirmed to the widow in the sale that was made to the 2nd respondent. The answer to us is clear. The appellants cannot blow hot and cold when it comes to acknowledging the transfers that were made by the widow of the deceased. We hold that the appellants failed to challenge the decision made by Makau, J. when he did not order the cancellation of the title issued to the 2nd respondent. They cannot be heard to complain when Limo, J made a similar decision upholding the transfer of the parcel of land that was sold to the 1st respondent by the widow using the same confirmed grant. 21. In answer to the second issue for determination, it is clear from the foregoing that this Court cannot fault the trial court for reaching the decision that it did in the circumstances of the case. The appellants conceded that they had been provided for by the deceased prior to his death. The 1st respondent purchased the parcel of land in question after satisfying himself that the widow of the deceased had been issued with a grant of letters of administration intestate in respect of the estate of the deceased and which grant had been confirmed. The said parcel of land was transferred to the 1st respondent before the subsequent proceedings took place that resulted in the revocation of the grant. We hold, just like the Superior court that the transfer made by the widow to the 1st respondent was protected under Section 93 of the Law of Succession Act that provides as follows: “(1) A transfer of any interest in immovable or movable property made to a purchaser either before it after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.” 22. In the premises therefore, the order that commends itself to us is the dismissal of the appeal. It lacks merit. The 1st respondent shall have the costs of the appeal. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. JAMILA MOHAMMED ........................... JUDGE OF APPEAL L. KIMARU ........................... JUDGE OF APPEAL A.O. MUCHELULE https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2118/eng@2025-11-28 5

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........................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2118/eng@2025-11-28 6

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