In re Estate of Joash Manyara Maoga (Deceased) - David Kombo Manyara & another v Rael Nyaboke Manyara & another

le. The two appeals arose from the judgment of the High Court at Nyamira (E.N. Maina, J.) dated 4th March, 2021. The appeals relate to the estate of Joash Manyara Maoga (deceased), who died intestate and was survived by Ebisiba Nyagetari Manyara (the rst wife), Rael Nyaboke Manyara (the second wife and 1st respondent in both appeals), and 22 children. David Kombo Manyara (the 1st appellant) and Andrew Barongo Manyara (the 2nd appellant) are sons of the deceased. As will be apparent, the only true respondent to the consolidated appeals is Rael Nyaboke Manyara, whom we will therefore refer to as the respondent in the body of this decision. 2. The brief history of the proceedings before the High Court is as follows. The respondent led a petition for the grant of letters of administration intestate and a grant was issued to her on 4th January, 2016. Thereafter on 2nd March, 2016, the appellants led summons for revocation or annulment of the grant. The respondent then applied for conrmation of the grant on 25th August, 2017, which the appellants protested against. The appellants’ application for revocation of the grant was dismissed on 27th September, 2018. On 12th March, 2020, the High Court rendered its Ruling on the application for conrmation of the grant, ordering rectication of the earlier grant to include the names of Ebisiba Nyagetari Manyara, David Kombo Manyara and Andrew Barongo Manyara. The High Court further referred the issues on conrmation of the grant and the mode of distribution of assets to mediation. The rectied grant of letters of administration intestate was later issued on 30th April, 2020. Thereafter on 26th November, 2020, the High Court allowed the respondent’s application for an order of injunction against the appellants’ intermeddling with a parcel of land belonging to the deceased, which had not been in their possession when the petition was led. The High Court’s Ruling of 26th November, 2020 is however not included in the record of appeal led in this Court. After the mediator returned a report dated 22nd September, 2020 that the parties had not reached a settlement, the High Court rendered its judgment on 4th March, 2021. The Court conrmed the grant and distributed the estate. 3. In evidence, the respondent’s case was that the rst wife had 12 children with the deceased, while she had 10 children with him. The 1st appellant (David) is her eldest son. The two wives live on a parcel of land each and farm on the other unoccupied parcels of land the deceased owned. It was the respondent’s testimony that some of the assets had since been transferred to the 2nd appellant (Andrew) and the rst wife without relevant consent by the beneciaries of the deceased’s estate. That the family had never agreed on how to distribute the estate and she was capable of administering the deceased’s estate. In her petition, she had listed all the children in each house, and all the deceased’s assets together with the certicates of search. The respondent further testied that the deceased had to sell a parcel of land to demarcate her land and that of the rst wife, due to a land dispute and disturbance from her stepsons. 4. The respondent stated that she used Abagusii Customary Law to distribute the estate because she was married as a second wife under the said law. She had been staying on the land that is reference no. Isoge/ Kineni/13 since the death of her husband and had faced a lot of problems. She faced hostility because the rst wife’s children and some of her own children were opposed to her administering the estate. She opposed the children taking over the administration of the estate because her unmarried daughters might not be given land. However, she would not object to the children administering the estate if the court guaranteed protection of her daughters’ rights. The respondent stated that she preferred representing her house as the only administrator of the estate, and, that the rst house could appoint one person. While noting that the schedule for the proposed distribution included all the beneciaries’ names, she acknowledged that it was undated and that there were no signatures against the names. She did not get consent from any of her children. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1948/eng@2026-09-25 2

page 2 of 10

5. The respondent claried that the deceased sold a portion of LR Isoge/Kineni/13 to one James Magoma and that she gave the written sale agreement to her son, the 1st appellant. The said agreement was made sometime in 1995 and was witnessed by the deceased’s children, that is, the 1st appellant and George Manyara. Mr. Magoma took possession of the land in 1995 and had even constructed a house on the property, as shown in a picture before the court. The said purchaser has been on the said land and has never been chased away by her children and stepchildren for all those years. She further claried that the deceased died on 1st June, 2000 and that any other indication in any documents before the court was an error. It was further her evidence that the deceased partitioned the 100-acre land into two halves of 50 acres each with the help of a surveyor. The deceased then gave 50 acres to each house. She had already sold 10 acres of her portion. 6. The respondent stated that although West Mugirango/Bonyamatuta/220 was registered in another person’s name, it belonged to the deceased. She could not remember whether the deceased called a meeting in 1997, and was also not aware of any loans taken by the deceased using three of his assets as security. She noted that the protestors had not led their preferred mode of distribution. She claried that the portion of land sold by the deceased to James Magoma was between her land and that of the rst house. 7. In their defence, the 2nd appellant (DW1) testied that he represented the interests of his mother (the rst wife) and Elijah Manyara (eldest son in the rst house) in the proceedings. He denied that the deceased sold his land, asserting that the purported sale agreement signed with Mr. Magoma had never been shown to them. He stated that, except for the respondent, the rest of the family had agreed on how the estate should devolve. As agreed in a meeting, they proposed that two sons in the rst house and two sons in the respondent’s house administer the estate. DW1 noted that their concern was the administrators and not the mode of distribution. That they had shown the disadvantage of continuing with the respondent as the administrator. They wanted the court le closed and for the proceedings to begin afresh because of the errors in the records. 8. DW1 further stated that he opposed the respondent’s proposed mode of distribution because the deceased had distributed the estate in February 1997, save for Isoge/Kineni/362. He noted that Isoge/ Kineni/13 was occupied by both houses on equal acreage and that parcels 109, 280, 3231 and 3232 were in the deceased’s name until 2003, when they were registered to DW1’s name, with 109 registered in the rst wife’s name. He noted that the deceased distributed his estate as follows: the rst wife was to get 3232, 3231, 280, and 109; both houses were to share 2135 and 13 equally; the plot 362 was used by the respondent; and land parcel 220 did not exist. He maintained that the recommendations on the last page of the minutes led in court are how the deceased wanted the estate to be distributed. 9. DW2, the respondent’s son, testied that the respondent was not competent to administer the estate because she was 70 years old and had already intermeddled. He reiterated that the solution was to start the case afresh by revoking the grant issued to the respondent. He admitted that he had never reported Mr. Magoma to the police for trespassing and stated that he had never seen him when the deceased was alive. He contended that their application for revocation of the grant was never dismissed because the court told them to go home and discuss the matter. He conrmed that Siamani/2135 was still in the deceased’s name. According to DW2, the only land that was to be distributed was Kineni/13 since the deceased had distributed his land in 1997. He stated that DW1 had paid o a loan taken by the deceased and was entitled to take up the particular properties. 10. In a judgment dated 4th March, 2021, the trial Court found it had the jurisdiction to deal with the issues arising in the cause under Sections 47 and 40 of the Law of Succession Act. It was persuaded that LR West Mugirango/Bonyamatuta/220 did not belong to the deceased and left out LR West https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1948/eng@2026-09-25 3

page 3 of 10

Mugirango/Siamani/220 for not having been included in the list of assets belonging to the deceased. In the analysis, the High Court held that the transfers and change of ownership of the properties that occurred after the death of the deceased in 2000 had been done unlawfully and were therefore null and void. Therefore, the High Court directed that the titles issued to the 2nd appellant, the rst wife and Kineni Farmers Co-operative Society be cancelled and revert to the estate of the deceased. The properties were distributed in accordance with Section 40(1) and (2) of the Law of Succession Act as follows: 1st House (1) LR West Mugirango/Bonyamatuta/109 - 3.4 Ha (2) LR West Mugirango/Siamani/3232 – 0.09 Ha (3) LR West Mugirango/Siamani/3231 – 0.09 Ha (4) LR Isoge/Kineni/13 – 20.03 Ha (5) LR West Mugirango/Siamani/2135 – 0.075 Ha (6) LR West Mugirango/Bonyamatuta/280 – 1.1 Ha Total Acreage - 24.785 Ha 2nd House (1) LR Isoge/Kineni/362 – 0.046 Ha (2) LR West Mugirango/Siamani/2135 – 0.075 Ha (3) LR Isoge/Kineni/13 – 20.03 Ha (4) LR West Mugirango/Bonyamatuta/280 – 1.1 Ha Total Acreage - 24.785 Ha 11. Aggrieved by that decision, the appellants have led a memorandum of appeal dated 20th August, 2021 raising 17 grounds of appeal. They pray that the appeal be allowed by reversing and setting aside the said Judgment and decree entered on 4th March, 2021, and that the respondent be made to pay the costs of this appeal. 12. When this appeal came up for hearing before us, the learned counsel Mr. Mburu appeared for the appellants, while learned counsel Mr. Ombachi appeared for the respondent (Rael Nyaboke Manyara). Both counsel canvased the appeals in reliance upon their respective written submissions and by reiterating the contents thereof in brief oral highlights. 13. Mr. Mburu stated that the trial Judge misapprehended the spirit and principles of the provisions in sections 40, 45(1), 51(2) (g), 76, 83, of the Law of Succession Act and rule 26 of the Probate and Administration Rules, 1980, in considering the matters before her. Counsel condensed the 17 grounds of appeal into three issues for determination as follows; a. whether the learned Judge abdicated her duty to resolve the issues in controversy; b. whether the learned Judge erred in ignoring the fact that the respondent had intermeddled with the estate; and c. whether the learned Judge followed the provisions of Part IV, sections 35 and 40 of the Law of Succession Act. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1948/eng@2026-09-25 4

page 4 of 10

14. Firstly, counsel for the appellants submitted that the learned Judge dismissed the application for revocation of the grant on 27th September, 2018 without hearing it. That the provisions of Section 76 of the Law of Succession Act provide that for a grant to be revoked, there must be evidence that the proceedings to obtain it were defective in substance, or it was obtained fraudulently. He pointed out that there were glaring inconsistencies as to how the respondent got the grant of letters of administration. That the grant issued on 4th January, 2016 and rectied on 30th April, 2020 states that the deceased died on 2nd November, 2015, yet the certicate of death reads the 1st of June, 2000. Counsel asserted that the manner in which the High Court distributed the property was not what had been agreed upon. That there were minutes as to the mode of distribution of some of the properties, as agreed in a meeting held by the deceased before he passed away. The appellants are aggrieved because that distribution does not tally with what the minutes hold. He argued that the whole process was awed if there were no signatures on the consent led by the respondent, and that the matter ought to have started afresh. 15. Secondly, Mr. Mburu submitted that the learned Judge’s interpretation of Section 45 of the Law of Succession Act was narrow and failed to consider what amounts to intermeddling. That the evidence on record demonstrated that the respondent intermeddled with part of the estate by permitting a trespasser to enter and occupy a portion of the deceased’s land. He argued that the learned Judge should have pronounced the transaction void. 16. Thirdly, counsel argued that contrary to Section 47 of the Law of Succession Act, the learned Judge purported to distribute properties given as gifts in contemplation of death by the deceased. That the said minutes of the family had disclosed that some properties had been willed away by the deceased, whose wishes should have been strictly honoured. He submitted that the trial court’s conclusion that the transfer of the properties to the 2nd appellant was unlawful was incorrect and based on wrong principles of law. That in issuing injunction orders against the appellants and purporting to cancel the titles issued in their favour, the learned Judge strayed into an area that is the preserve of the Environment and Land Court. Counsel further argued that the learned Judge erred by distributing the estate without demonstrating how she applied the principles in Section 35 as read with Section 40 of the Law of Succession Act, particularly the number of children in each house. That the Court should have considered that the beneciaries were settled in their respective parcels of land, have been in occupation of the same, and have developed the said parcels. 17. In response Mr. Ombachi submitted that Section 47 of the Law of Succession Act clothes the learned Judge with unfettered powers to deal with any application brought before the court, and to preserve the estate until the same is legally distributed. That the learned Judge had jurisdiction to deal with the illegal transfer of titles by the 2nd appellant, which was intermeddling under Section 45. He further submitted that the learned Judge was alive to Section 40, which requires that in a polygamous marriage, the estate devolves rst to the houses, which in this case were represented by the rst wife, Ebisiba Nyagetari Manyara and the second wife, Rael Nyaboke Manyara. 18. Counsel submitted that he who alleges must prove. That the appellants failed to prove any of the facts alleged in the family minutes, and the evaluation of their evidence by the Court was therefore reasonable. In addition, the allegations concerning a third party intermeddling with the estate of the deceased were never substantiated, and the said stranger was never made a party to the succession proceedings. Counsel argued that, in any event, the trial court did not distribute any part of the estate to the alleged stranger. That it is the responsibility of the estate’s administrators to ensure that all liabilities of the deceased are taken care of, including ensuring the transfer of a portion of the land purchased by James Magoma. Counsel maintained that the learned Judge applied the law correctly and considered https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1948/eng@2026-09-25 5

page 5 of 10

all facts and circumstances needed before arriving at her decision. He urged this Court to dismiss the appeal with costs to the respondent. 19. This is a rst appeal. This Court held in the case of Selle & another v Associated Motor Boat Co. Ltd & others (1968) EA 123, that the rst appellate court has to reconsider, evaluate and assess the evidence tendered before the trial court and make its own conclusions in the matter. 20. We have considered the parties’ respective submissions and the memorandum of appeal and sieve out the issues for determination as follows: whether the High Court had jurisdiction to cancel the registration of the land being part of the estate if it amounted to intermeddling and therefore unlawful or the matter ought to have been taken to the Environment and Land Court as the court with requisite exclusive jurisdiction; whether the High Court abdicated in issuing the grant on 4th January, 2016 as rectied on 30th April, 2020 with the respondent as one of the administrators and failing to nd that the respondent had obtained the initial grant fraudulently, as alleged for the appellants; whether the High Court distributed the property in accordance with relevant provisions of the Law of Succession Act. 21. On the rst issue it was submitted for the appellants that in issuing injunction orders against the appellants and purporting to cancel the titles issued in their favour, the learned Judge descended into an area that is the preserve of the Environment and Land Court. In making the impugned decision, the learned trial Judge stated as follows; “ As stated earlier in this judgement the estate is subject to the Law of Succession Act and Section 55 (1) & 82 (b) (ii) of the Law of Succession Act make it succinctly clear that unless and until the grant has been conrmed there can be no division or disposal of immovable property. I do therefore nd that the transfers and/or change of ownership of the properties that occurred after the death of the deceased were done unlawfully and are null and void. Accordingly, the titles issued to Andrew Barongo Manyara and his mother Ebisiba Nyagetari Manyara were issued unlawfully and this court directs that the same be and are hereby cancelled and the ownership thereof reverted to the estate of the deceased. The above mentioned order shall also apply to property Isoge/Kineni/362 which according to the certicate of search led by Rael Nyaboke Manyara was registered in the name of Kineni Farmers Co-operative Society on 2nd December 2010 which is ten years after the death of the deceased.” 22. Section 55(1) of the Law of Succession Act states that no grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been conrmed as provided by section 71. Section 82 (b) proviso (ii) of the Act provides that no immovable property shall be sold before conrmation of the grant. 23. The learned Judge had earlier in the judgment set out a basis for her jurisdiction as follows; The law is that the deceased having died intestate the distribution of his immovable property is subject to the Law of Succession Act (see Section (1) (a) of the Law of Succession Act which states “ (1) Except as otherwise expressly provided in this Act or by any other written law— https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1948/eng@2026-09-25 6

page 6 of 10

(a) succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicile of that person at the time of his death…” The power of this court to determine the dispute before it is more specically derived from Section 47 of the Law of Succession Act. The Section states “The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.” The Law of Succession Act therefore gives power to this court to inter alia hear disputes relating to the estate of deceased persons, to grant letters of administration or to appoint legal representatives and to revoke or conrm the grants issued and to determine the mode of distribution if not agreed. The number of cases in which courts have done the above is legend.” 24. We are satised that the learned Judge did not err in nding that she had the requisite jurisdiction to hear and determine the matter in issue relating the registration of the identied parcels of land (being part of the deceased’s estate) in the names of Andrew Barongo Manyara and his mother Ebisiba Nyagetari Manyara prior to conrmation of the grant but after the deceased had died because under section 47 of the Act the High Court has jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient. 25. The High Court sitting as the succession court has jurisdiction to hear disputes regarding land registered prior to the conrmation of a grant but after death of the deceased and to cancel such registrations on the grounds of intermeddling and fraud. Indeed, and as was correctly held by the learned Judge, under section 47 of the Law of Succession Act, the High Court has unlimited original jurisdiction to entertain any application, determine any dispute, and make expedient orders regarding the administration of a deceased’s estate, which inherently includes canceling titles and stopping intermeddling. When a parcel of land belonging to a deceased person (like in the instant dispute is unlawfully registered prior to the conrmation of the grant but after death of the deceased, it constitutes illegal intermeddling with deceased’s estate under section 45 of the Law of Succession Act. Such unlawful registration would disrupt the lawful devolution of the estate. In the circumstances, the Environment and Land Court (ELC) does not have exclusive jurisdiction to the exclusion of the High Court as a succession court. It is our view that both the High Court as the succession court and the ELC may exercise concurrent jurisdiction in disputes touching on land title and depending on the circumstances, either court may enjoy the jurisdiction to hear and determine the dispute. In the present appeal, the dispute arose before the High Court in a pending succession cause and we are satised that the learned Judge had jurisdiction to hear and determine the emergent issue of registration of the identied parcels of land that were part of the deceased’s estate and which registration was prior to conrmation of the grant but after the deceased’s death and therefore amounted to intermeddling. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1948/eng@2026-09-25 7

page 7 of 10

26. Accordingly, while the court that is vested with the jurisdiction to deal with land issues is the ELC by dint of Article 162(2) of Constitution and section 13(2) of ELC Act which gives jurisdiction to the ELC to hear and determine disputes relating to inter alia, environment, land use planning, title, boundary disputes, land administration and management, choses in action or other instruments granting enforceable interests in land among other related issues, the High Court had concurrent jurisdiction to deal with the issue arising before it in exercise of its jurisdiction as a succession court. In any event, the appellants have not suggested that they desired to move the ELC and further, nothing stopped them from invoking rule 41 (3) of the Probate and Administration Rules which states as follows; “ (3) Where a question arises as to the identity, share or estate of any person claiming to be benecially interested in, or of any condition or qualication attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to conrming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to conrm the grant.” 27. We have re-evaluated the evidence on record and we are satised that the High Court did not err in nding that the land parcels which Andrew Barongo Manyara claimed were registered in his name but essentially being part of the deceased’s estate had been as a result of intermeddling and therefore, unlawful. The minutes that he relied upon did not show that his father signed the transfer forms and assigned him to settle the bank loans so that thereafter, the land parcels would get transferred to him or his mother. He did not produce the alleged transfer forms signed by his father or the evidence of his payment of the alleged bank loans he alleged the land parcels had been applied as security. The High Court correctly included the land parcels in the distribution of the deceased’s estate. 28. The second issue for our determination is whether the High Court abdicated its jurisdiction in issuing the grant on 4th January 2016 as rectied on 30th April, 2020 with the respondent as one of the administrators and failing to nd that the respondent had obtained the initial grant fraudulently. The appellants led summons dated 2nd March, 2016 for revocation or annulment of the grant as issued to the respondent. The respondent opposed the summons by her replying adavit sworn on 17th March, 2016. On 27th Septembers 2018 the High Court dismissed the application. The High Court ordered as follows; 29. a) The grant shall remain as it is the adminstratrix have been granted leave to petition for letters of administration by the court and she being the widow of the deceased she ranked higher in priority to the applicants in the administration of the estate. The application for revocation of the grant is accordingly dismissed. b) The next stage shall now be conrmation of the grant and any protests that may be led. The appellants never applied for a review or setting aside of the dismissal orders and did not appeal against the decision dismissing the application. As submitted for the respondent, it amounts to an abuse of the court process to urge issues surrounding the decision that dismissed the application for annulment or revocation of the grant. We therefore decline to delve into the issue. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1948/eng@2026-09-25 8

page 8 of 10

30. In any event the discrepancies or errors in the grant about the date the deceased died were liable to rectication in accordance with section 74 of the Law of Succession Act which provides thus, errors in names and descriptions, or in setting out the time and place of the deceased's death, or the purpose in a limited grant, may be rectied by the court, and the grant of representation, whether before or after conrmation, may be altered and amended accordingly. 31. In particular, in a ruling delivered on 12th March, 2020 the High Court directed the Deputy Registrar to re-call the grant that had been issued to the respondent and the respondent to produce it within 21 days for rectication to include more administrators in addition to the respondent and namely Ebisiba Nyagetari Manyara and the two appellants. The order was per section 66 of the Law of Succession Act which vests in the High Court the nal discretion as to the person or persons to whom a grant of letters of administration shall be made but subject to the order of preference set out in the section. We observe that the appellants did not apply to set aside the order and while each appellant led a notice of appeal dated 17th June, 2020 against the decision, the appeal appears not to have been pursued. We have seen on record the rectied grant of letters of administration consistent with the High Court’s decision issued on 30th April, 2020 and the noting thereon that the grant issued to the respondent on 4th January, 2016 was thereby revoked. We consider that issues related thereto are outside the scope of the present appeal and further that the appellants have failed to show that the High Court failed or abdicated the duty to resolve the issues in controversy because the record shows that the relevant directions and orders had been made at every stage of the proceedings. We have specically restrained ourselves by noting that the instant appeal is against the judgment of the High Court dated and delivered on 4th March, 2021. 32. The third issue is whether the High Court distributed the deceased’s estate in accordance with the relevant provisions of the Law of Succession Act. The High Court distributed the property in accordance with the provisions of section 40 (1) and (2)of the Law of Succession Act which provides as follows, “ 40. Where intestate was polygamous (1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household eects and the residue of the net intestate estate shall, in the rst instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. (2) The distribution of the personal and household eects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.” 33. The material on record shows that the appellant’s grievance that the distribution was contrary to the minutes by which the deceased had willed or given certain parcels of land particularly to the appellant Andrew Barongo Manyara were completely empty and not supported by evidence at all. We will not revisit that issue because we have extensively addressed it earlier in this judgment. Further, while the appellants urged that the distribution by the High Court would cause some of the beneciaries to be displaced from parcels of land they had already settled on and developed permanent residences was not established by evidence on record. We are satised that upon considering the material on record the High Court did not err in the manner it distributed the deceased’s estate. 34. The upshot is that the two appeals lack merits. The dispute was amongst family members. We therefore dismiss the appeals with no orders on costs. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1948/eng@2026-09-25 9

page 9 of 10

DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ................. JUDGE OF APPEAL E. C. MWITA ................. JUDGE OF APPEAL B. ONGAYA ................. 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/2026/1948/eng@2026-09-25 10

page 10 of 10