Francis Wesonga Odipo & Another v Ali Omondi Malachi & Another

estate, namely, Ali Omondi Malichi, Francis Wesonga Odipo and John Mungayi Odipo, failed to agree on the mode of distribution. The High Court determined in a judgment delivered on 17th June 2020 in Kakamega Succession Cause No. 595 of 2009 that the said estate of the deceased should Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 2 of 16

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be shared between the heirs of Odipo Wangoma and Malichi Wangoma. It accordingly awarded 12 acres to Ali Omondi Malichi, who was the son of Malichi Wangoma, and divided the remaining 21 acres equally (3.5 acres each) among six beneficiaries of the Odipo Wangoma namely, Maneya M. Osambayo, Francis Wesonga Odipo, Ramadhan Wanzofu Mungayi, Getruta Nechesa Osimba, Josephine Mutobera, and Wesonga Makokha. 2. The appellants, Francis Wesonga Odipo and Ramadhan Wanzofu Mungayi, who are sons of Odipo Wangoma, were dissatisfied with the said distribution and lodged this appeal. The appellants are appealing the entire judgment on five grounds set out in their Memorandum of Appeal dated 21 st May 2021, being that the trial judge failed to appreciate that the estate was free property of the deceased and only available for distribution to his children; erred in awarding 12 acres to the 1st respondent, who they claim is not a child of the deceased under section 38 of the Succession Act; wrongly presumed a trust existed regarding the deceased’s estate; violated sections 71(2) and 82(a) of the Succession Act regarding the capacity of the 1st respondent to inherit; and unequally distributed the estate whereby he granted the 1st respondent 12 acres on the basis of a non-existent trust. 3. It is prudent to provide the contextual backdrop of the appeal at this point as set out in the evidence adduced before the High Court. The deceased Odipo Wangoma was Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 3 of 16

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the son of Wangoma, who also had four other sons, being Juma Wanga, Malichi Wangoma Sheban Masinde and Laburende Weruli. The appellants, Francis Wesonga Odipo and Ramadhan Wanzofu Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 4 of 16

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Mungayi were children of the deceased Odipo Wangoma, while Ali Omondi Malichi (the 1 st respondent) was the son of Malichi Wangoma. Maneya Osambayo (the 2nd respondent) was the widow of Osambayo Odipo, who the respondents claimed was a son of Odipo Wangoma and brother to the appellants. The respondents main claim was that the suit property was held in trust by the deceased Odipo Wangoma for his younger brother Malichi Wangoma (the 1 st respondent’s father), and that the 1st respondent had resided on the suit property all his life, as had his parents, who were buried on the suit property. Further, the other sons of Wangoma had been allocated another ancestral parcel, being North Wanga/Mayoni/234, from which he had been excluded during distribution. Maneya Osambayo on her part claimed that since Osambayo Odipo was a biological son of the deceased and was therefore entitled to a share of the estate. 4. The appellants, together with their sisters, Josephine Mutobera and Getruta Nechesa Osimba filed affidavits of protest in the High Court with respect to the mode of distribution of the suit property that was proposed by the 1 st and 2nd respondents in a Summons for Confirmation of Grant dated 26th June 2012. They argued that the 1 st respondent was not a child of the deceased under section 38 of the Succession Act, and that the 2 nd respondent's husband had been provided for elsewhere by the family. They maintained Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 5 of 16

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that the suit property belonged exclusively to the deceased as the registered proprietor and denied the existence of any trust in favour of Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 6 of 16

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Malichi Wangoma. They further contended that Ali Omondi's father only settled on the land after the death of the deceased and that his rightful inheritance, if any, lay in North Wanga/Mayoni/234. As regards Osambayo Odipo, they asserted that he was a step-son who had been settled on a separate parcel of land, namely South Wanga/Lureko/959, and was therefore not entitled to inherit from the deceased's estate. 5. We heard the appeal on this Court’s virtual platform on 28 th April 2026. Learned Counsel, Mr. Luchivya, was present, appearing for the appellants, while learned counsel Mr. Nandiwa appeared for the respondents. The two counsels relied on their respective submissions dated 19 th February 2025 and 23rd July 2021, which they highlighted during the hearing. As this is a first appeal, our duty, as set out in the decision of Selle and another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123, is to reconsider the evidence, evaluate it, and draw our conclusion of facts and law. We will only depart from the findings by the trial Court if they were not based on evidence on record; if the court is shown to have acted on the wrong principles of law as was held in Jabane vs Olenja (1986) KLR 661, or where its discretion was exercised injudiciously as held in Mbogo & another v Shah (1968) EA 93. 6. We shall first address two jurisdictional issues that have been raised in the submissions made by the two counsel, Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 7 of 16

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and a determination of the substantive issue of whether the distribution by the trial Court was lawful and reasonable will largely depend on the determination we make on the Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 8 of 16

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jurisdictional objections. The first jurisdictional issue was raised by the respondents’ counsel, who submitted that the appellants’ appeal was not properly before this Court. Counsel submitted that proceedings under the Law of Succession Act are sui generis and are governed by the special procedure prescribed under the Act, and he placed reliance on Rule 63 of the Probate and Administration Rules, which sets out the limited application of the Civil Procedure Rules to succession proceedings. It was his contention that it has been consistently held that an appeal from the High Court exercising its original jurisdiction in succession matters did not lie as of right and could only be instituted with leave of the Court. Furthermore, that although the appellants had filed an application dated 9th November 2020 seeking extension of time to lodge the appeal, no leave had been obtained either from the High Court or this Court to institute the appeal. Consequently, the appeal was improperly before this Court and ought to be struck out. Reliance was also placed on the decisions by this Court in the cases of Joseph Gachii Kiragu vs Francis Muregi Kiragu [2021] eKLR and Rhoda Wairimu Karanja & Another vs. Mary Wangui Karanja & Another [2014] eKLR, that in succession causes the right of appeal under the Law of Succession Act is not automatic, and that a party who wishes to appeal must do so with leave of the court. 7. The appellants’ counsel did not make submissions on this Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 9 of 16

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issue. This jurisdictional issue was however the subject of a recent decision by the Supreme Court of Kenya in Wandi vs Muchira (Suing as the Administrator Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 10 of 16

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Ad Litem of Jane Muthoni Muchira) [2026] KESC 29 (KLR), in which the Supreme Court noted that section 47 and 50 of the Law of Succession Act which provide for the jurisdiction of the High Court are silent on, and do not expressly provide for appeals to the Court of Appeal from decisions of the High Court rendered in exercise of its original jurisdiction in succession matters. The Supreme Court also examined the various judicial opinions and differing positions on the question of the right of appeal to the Court of Appeal in succession matters, including the decisions of this Court in Margaret M. John v David J. Kibwana [1996] KECA 212 (KLR), Rhoda Wairimu Karanja & Another vs. Mary Wangui Karanja & Another (supra) and Machuka & Another v Nyangute & Another [2025] KECA 538 (KLR). 8. After reviewing this jurisprudential landscape, the apex court addressed the legal or juridical basis for requiring leave to appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter as follows: “50. We have surveyed the procedural landscape and identified instances in which statute or subsidiary legislation expressly provides for leave as a prerequisite for an appeal from the High Court to the Court of Appeal. Examples include Section 39(3)(b) of the Arbitration Act, Cap. 49 which stipulates that an appeal shall lie to the Court of Appeal from a decision of the High Court only where the Court Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 11 of 16

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of Appeal, being satisfied that a point of law of general importance is involved and that its determination will substantially affect the rights of one or more of the parties, grants leave to appeal. Similarly, Section 75(1) of the Civil Procedure Act, Cap. 21 provides that an appeal shall Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 12 of 16

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9. lie from specified orders as of right, and from any other order only with the leave of the court making the order or of the court to which the appeal would lie. Further, Order 43 Rule 2 of the Civil Procedure Rules provides that an appeal shall lie with leave where the order is not among those listed as appealable as of right. 51.From these provisions, a clear legislative pattern emerges. Where Parliament intends to require leave as a condition precedent to the exercise of the right of appeal, it does so expressly and in unambiguous terms. The requirement for leave is therefore neither implied nor inferred from statutory silence. Rather, it is a deliberate legislative prescription. This position is further illustrated by Section 50(2) of the Law of Succession Act, which expressly provides that an appeal shall lie to the High Court from decisions of a Kadhi’s Court and, with the prior leave of the High Court, to the Court of Appeal on points of Muslim law.” The Supreme Court then made the following conclusion, which addresses the arguments raised by counsel for the 1 st respondent on this issue: 52. It follows, therefore, that the Law of Succession Act and the Probate and Administration Rules do not contain any express provision requiring leave for appeals from decisions of the High Court rendered in the exercise of its original jurisdiction. In the absence of such express stipulation, the requirement for leave in succession jurisprudence cannot be said to arise from statute, but rather from judicial interpretation. Indeed, it is notable that the Court of Appeal, in several of the decisions we have considered in this judgment, has characterised the Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 13 of 16

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requirement for leave to appeal as one grounded in “judicial practice.” 53. It is apposite to recall that the Law of Succession Act and the Probate and Administration Rules constitute a complete code, permitting the importation of the Civil Procedure Rules only in specifically defined instances as contemplated in Rule 63(1) of the Probate and Administration Rules. Our jurisprudence is replete with decisions affirming that the Law of Succession Act is a self- Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 14 of 16

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contained regime. See Rhoda Wairimu Karanja & Another v Mary Wangui Karanja & Another [2014] KECA 255 (KLR); Josephine Wambui Wanyoike v Margaret Wanjira Kamau & Another [2013] KECA 443 (KLR); Josphat Mwania Muia v Loice Atieno Oduk, Civil Appeal No. 181 of 2018; Re Estate of Samuel Wambugu Ngunyi (Deceased) [2025] KEHC 3610 (KLR); and Re Estate of Ngaruhia Kamau (Deceased) [2021] KEHC 4998 (KLR). This position was aptly captured in Re Estate of Nazir Khan Mohamed (Deceased) [2025] KEHC 14134 (KLR), where the court stated that: “It is trite law that the Law of Succession Act is a sui generis legislation with its own procedures… I rely on the case of Josephine Wambui Wanyoike (supra) where it was stated that:-“We hasten to add that the Law of Succession Act is a selfsufficient Act of Parliament with its own substantive law and rules of procedure. In the few instances where the need to supplement the same has been identified, some specific rules have been directly imported into the Act through its Rule 63(1).” [Emphasis added] 54. We therefore come to the inevitable conclusion that there is no legal basis for imposing a requirement of leave as a prerequisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter. Such a requirement, not being anchored in either the Constitution or statute, cannot properly be sustained.” 10. On whether a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter is appealable as of right to the Court of Appeal, the Supreme Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 15 of 16

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Court, while noting that section 50(1) of the Law of Succession Act provides for an automatic right of appeal to the High Court from decisions of Resident Magistrates’ Courts. The Supreme Court also considered Article 27(1) of the Constitution which guarantees equality before the law and the equal protection and benefit of the law, Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 16 of 16

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and Article 20(3)(a) of the Constitution which obligates courts, in applying the Bill of Rights, to develop the law to the extent gives effect to a right or fundamental freedom. Th apex Court accordingly held that a restrictive interpretation that denies a right of appeal in succession matters originating from the High Court would undermine the values of equality and access to justice. We are bound by the decision of the Supreme Court on this issue, and accordingly find that this appeal is properly before us, and no leave was required to lodge it in this Court. 11. The second jurisdictional issue was raised by the appellants’ counsel, who faulted the trial Court's finding that the deceased held the suit land in trust for the father of the 1st respondent. Counsel submitted that they had challenged the jurisdiction of the High Court to determine whether the deceased held a portion of the estate in trust for Bakari Malichi, the deceased father of the 1 st Respondent, both at trial and in the Memorandum of Appeal. They contended that the 1st respondent's claim and that the evidence he adduced was founded entirely on trust and not on succession, as he was admittedly a nephew and not a child of the deceased. In their view, disputes relating to ownership of land through trust fall within the exclusive jurisdiction of the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution. The appellants therefore argued that the High Court lacked jurisdiction to determine the issue of trust or to award the 1st respondent any portion of the estate, as his claim fell outside the ambit of the Law of Succession Act. The Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 17 of 16

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appellants further submitted that, having found that the 1st respondent's claim was Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 18 of 16

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founded on the allegation that the deceased held a portion of the estate in trust for the family of the 1 st respondent, the trial court ought not to have proceeded to confirm the grant. Instead, they contended, the court should have invoked section 71(2)(d) of the Law of Succession Act, read together with section 2A thereof, and deferred the determination of the disputed interest. 12. The respondents’ counsel on his part submitted that the issue of the trial Court’s jurisdiction was being raised for the first time on appeal. We have perused the record and note that indeed the appellants are expressly raising the issue of the trial Court’s lack of jurisdiction for the first time in its Memorandum of Appeal, which based in the ground that the trial Court erred in presuming a trust. In the trial Court, their main objections in the affidavits of protest was that the suit property was registered in their father’s name, the respondents were not the deceased’s beneficiaries and had been provided for elsewhere, and they did not specifically raise any objection to the trial Court’s jurisdiction. 13. However, and this failure notwithstanding, the issue of jurisdiction can be raised at any stage of the proceedings. It follows that jurisdiction, even the where same a does party not initially clothe a admits court to with jurisdiction it did not have to begin with. Nonetheless, such an objection ideally should be raised at the earliest opportunity. We are therefore in agreement with the following holding of this Court in Jamal Salim v Yusuf Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 19 of 16

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Abdulahi Abdi & another [2018] KECA 14 (KLR): Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 20 of 16

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“16. As this Court has noted time and time again, jurisdiction is what clothes a court with the power to entertain and render a decision in a dispute before it. Without it a court acts in vain. The significance of jurisdiction was spelt out in the often cited case of Motor Vessel M.V. Lillians vs. Caltex Oil (Kenya) Limited 1989 KLR 1 wherein Nyarangi, J.A, as he then was stated:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like mean… If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal has been given power to determine conclusively whether the fact exists where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision a merit to nothing..” 17. Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties. This much was appreciated by this Court in Adero & Another vs. Ulinzi Sacco Society Limited [2002] 1 KLR 577, as follows; “1) … 2) The jurisdiction either exists or does not ab initio … 3) Jurisdiction Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 cannot be conferred by the Page 21 of 16

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consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction. 4) Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.” Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 22 of 16

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14. This position was reiterated by the Supreme Court in Macharia & another vs Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) where it was held that “a Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings”. Put differently, a court cannot make legally binding decisions if it lacks the proper authority over the subject matter, parties cannot waive this issue, and a jurisdictional defect renders any resulting judgment a legal nullity. We shall accordingly proceed to examine the issue of whether the trial Court had jurisdiction to make a finding based on the 1st respondent’s claim that the suit property was held by the deceased Odipo Wangoma in trust for his father Malichi Wangoma. 15. In this regard, while the trial Court framed the first issue before it as being “whether the 1st Petitioner Ali Omondi Malichi is a beneficiary of the estate of the late Odipo Wangoma” it noted that the 1st petitioner’s claimed Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 23 of 16

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entitlement to a share of the deceased’s estate on the ground that the land parcel South Wanga/Lureko/181 was registered in the name of the Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 24 of 16

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deceased in trust of his father Malichi Wangoma. The trial Court proceeded to hold as follows as regards its power to address this claim: “ 24. The subject land is registered in the name of the late OdipoWangoma. Section 25 of the Land Registration Act grants a registered proprietor of land absolute ownership of the land subject to such rights and interests that do not need to be noted in the register. Some of these rights according to section 28 of the Act that do not need to be noted in the registered (sic) are “trusts including customary trusts”. The 1st petitioner is laying his claim on customary trust.” 16. The primary jurisdiction of a succession court is that of identifying a deceased’s estate and distributing it to rightful beneficiaries. Section 47 of the Law of Succession Act, provides that the High Court shall have jurisdiction to entertain any application and determine any dispute under this Act, while section 2 of the Act sets out its applicability and extent, being that it constitutes the law of Kenya in respect of, and has universal application to all cases of intestate or testamentary succession to the estates of deceased persons who die after the commencement of the Act and to the administration of estates of those persons. Therefore, while it may be argued that a succession court can investigate and determine whether the deceased held that land in trust for rightful beneficiaries, where the claim involves persons who are not beneficiaries or third parties claiming outright ownership of the deceased's land, including Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 25 of 16

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on the basis of a trust, the succession court lacks jurisdiction since the dispute then metamorphosizes to one of entitlement and title to land, rather than devolvement of the estate to the rightful beneficiaries. Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 26 of 16

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17. The issue of whether a succession court has jurisdiction to determine claims of entitlement to land registered in the name of a deceased person on account of existence of a trust over land was the subject of the holding by this Court in Kamau & another (Legal Representative of the Estate of Francis Kamau Wainaina - Deceased) v Mwangi (Civil Appeal E441 of 2023) [2026] KECA 99 (KLR) as follows: “ 24.The appellants also asserted that the respondent’s claim was essentially a succession dispute and ought to have been ventilated in Succession Cause No. 1785 of 2015 relating to the estate of Francis Kamau Wainaina, where the respondent was allocated two acres. The respondent’s response, consistent with the position taken before the trial court, was that the question before the Environment and Land Court was not distribution of the estate per se, but a declaration of trust and determination of rights in land — a matter falling within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the enabling statutes. 25. We agree with the trial court and the respondent on this point. Where a dispute turns on whether land registered in the name of a deceased person is held subject to a trust in favour of another, and the relief sought is a declaration of trust and consequential orders concerning title and occupation, the proper forum is the Environment and Land Court – and not the probate court. A probate court’s mandate is administration and distribution of estates; it does not, as a general rule, Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 27 of 16

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determine contested questions of title or trust over land except to the extent necessary to facilitate distribution where rights are undisputed. In this case, the respondent’s very complaint was that the allocation in the succession process did not reflect her lawful beneficial entitlement under customary trust. That is precisely the kind of dispute that required adjudication by the Environment and Land Court. Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 28 of 16

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26. We add that the existence of a confirmed grant allocating two acres to the respondent did not, without more, extinguish the respondent’s asserted beneficial entitlement if, in fact, a customary trust existed in her favour. A beneficiary’s (or claimant’s) proprietary entitlement under a trust is not created by the grant; it precedes it. If proved, it constrains how the estate may be distributed because it identifies what, in truth, forms part of the free property of the deceased available for distribution.” 18. Consequently, once the 1st respondent laid a claim on the land registered in the name of the deceased Odipo Wangoma on the basis that the land was held in trust for his father Malichi Wangoma, a determination had to be made if that portion of land that was claimed was part of the free estate of the deceased, and this could only be made by the Environment and Land Court and not the succession Court. We therefore do find that the trial Court did err in proceedings to examine if such a trust existed and in making a distribution to the 1 st respondent based on the existence of such a trust. We cannot in the circumstances proceed to determine the substantive issue as regards the distribution made by the High Court, since the preliminary question as regards whether the 1st respondent was entitled to a portion of the land parcel South Wanga/Lureko/181 registered in the name of the deceased Odipo Wangoma on the basis of trust has to be determined in the correct fora first. It is only then that the Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 29 of 16

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trial Court can proceed to distribute the confirmed free property of the deceased. 19. We accordingly set aside the judgment delivered on 17 th June 2020 by the High Court in Kakamega (L.N.Njagi J.) in Kakamega Succession Cause No. Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 30 of 16

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595 of 2009 in its entirety, and remit the matter back to the High Court for further directions. As this is an appeal involving family members, each party shall bear the costs of the proceedings in the trial Court and of this appeal. 20. Orders accordingly. Dated and delivered at Kakamega this 17th day of July, 2026. P. NYAMWEYA. ……………………………… JUDGE OF APPEAL R. NGETICH ……………………………….. JUDGE OF APPEAL RADIDO S. OKIYO ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Judgment-KAK Civil Appeal No E021 of 2026 (Formerly KSM Civil Appeal No E093 Page 31 of 16

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