Catherine Njeri Njiru v Jane Wanjira Tiras Nyaga & 1 other

5. In relying on the consent to rectification of grant dated 26th February 2016 whereas no such document formed part of the proceedings thereto; and 6. In going against the weight of the evidence on record. Background 2. The appellant filed summons for revocation of grant dated 12th February 2024 under certificate of urgency. She sought that the grant issued to the respondents on 06th July 2015 be revoked and the certificate of confirmation of grant be annulled on grounds that the proceedings to obtain the grant were defective and that the grant was obtained fraudulently by concealment of facts material to the case. She deposed that after the grant was issued, it was confirmed and land parcel number Kagaari/ Kigaa/6234 was solely inherited by the respondents in equal shares, thus disinheriting her as a daughter of the deceased. 3. She also stated that the whole process was questionable because the consent had the deceased’s husband’s signature yet he died a long time ago. It was her claim that her consent to obtain the grant was not sought yet she is also a daughter of the deceased with every right to the estate. That even though it appeared that she had signed the consent form for confirmation of grant, her signature was forged since she has no known signature and she did not sign the document. For these reasons, she urged the court to revoke the grant which was fraudulently obtained. 4. The respondents opposed the summons for revocation through their replying affidavit dated 25th July 2024 in which they stated that the appellant voluntarily appended her signature to the consent form and that she was present throughout the proceedings until the point of confirmation of the grant. They denied having forged the appellant’s signature and added that the appellant agreed to the mode of distribution. They deposed that the appellant had been seen walking around the deceased’s property with land buyers without the knowledge of the respondents. 5. Before the appellant filed summons for revocation, one Njagi Tiras Nyaga, the appellant’s brother and son of the deceased had filed summons for revocation dated 14th August 2018. The grounds of revocation were the same as those cited in the appellant’s application, mainly being that the respondents did not involve the rest of the family in the succession proceedings. The court found that there was nothing in the proceedings supporting the allegations made by the applicant Njagi Tiras Nyaga in his revocation summons. That the confirmation proceedings indicate that Njagi Tiras Nyaga was present in court and he did not contest the distribution. That none of the beneficiaries swore affidavits to state to the court that their signatures were forged. The summons for revocation was dismissed and the distribution upheld as between the respondents alone. Summary of the Evidence in the Trial Court 6. The matter was heard viva voce. 7. PW1 was the appellant who stated that the consent for confirmation was obtained fraudulently and the form even contains the signature of their late father. That the respondents did not ask her for consent but they forged her signature. She stated that the proceedings leading to issuance of the grant and its confirmation were flawed and so the grant should be revoked and the certificate of confirmation be set aside. She denied being present during the succession proceedings. 8. In cross-examination, she denied that her son was present in the proceedings. That her son was given land by her father and that the estate herein belongs to their mother, the deceased, and not their father. That the deceased gave land to all her daughters. She did not report the forgery of her signature. She https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14632/eng@2025-10-15 2

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stated that their father died in 1976. She was not present during confirmation of the grant. In reexamination, she stated that her father’s name is Tiras Nyaga and he is the one who gave land to her son who is called Tiras Nyaga. She clarified that she is claiming from the estate of her mother and not that of her father. 9. RW1 was the 1st respondent who stated that the appellant was involved in the succession proceedings from the start. She was even at the Chief’s office when the introduction letter was written. That the appellant’s son was given 1½ acres of the land in place of his mother the appellant, therefore she was not entitled to more land since her son had already been given land. She urged the court to give the respondents the land equally because they do not have any land from their parents. In crossexamination, she stated that the deceased is her mother and the appellant is her sister. The appellant was not included in the succession proceedings. That the appellant’s son was given land on her behalf. She stated that the appellant has a known signature which she uses even at the bank. 10. RW2 was the 2nd respondent. She stated that she and RW1 got ¾ acres of the land while the appellant got 1½ acres through her son but they are not complaining. She stated that the appellant signed the documents and she was also present when the chief’s letter was written. On cross-examination, she stated that the deceased’s land is Kaagari/Kigaa/6334 and it measures ¾ acres. All their siblings were given land and the appellant was not included because her son was given 1½ acres of the land. She stated that when their brother filed summons for revocation, the same was dismissed by the trial court and on appeal. Findings of the Trial Court 11. In its ruling, the trial court relied on section 29 of the Law of Succession Act and the cases of In re Estate of the Late M’thigai Muchangi (Deceased) [2020] KEHC 904 (KLR) and M R M v J K E [2018] eKLR. The court found that there was no doubt that the applicant is a child of the deceased. The learned Magistrate found that the consent form was titled consent for rectification and it concerned the estate of the deceased. That it was correctly signed by all the beneficiaries including the appellant. The court also noted that the Chief’s introductory letter and the petition for the grant all include the appellant as a beneficiary. That the distribution was fair given the evidence adduced as to why that distribution mode was proposed. The summons for evocation was dismissed. Submissions on appeal 12. The parties were directed to file written submissions on the appeal. Only the appellant complied. 13. In her submissions, the appellant drew the court’s attention to the confirmation proceedings and noted that the court did not indicate who of the beneficiaries were present. The court only recorded that the beneficiaries were present, hence it was misled as to who was supposed to be present in the first place. She submitted that she only signs documents by way of affixing her thumbprint but in this case, there is a handwritten signature in the pleadings which she stated was not hers. She denied having given her consent for confirmation of the grant. She relied on the case of In re Estate of Kiplangat Chumo (Deceased) [2023] KEHC 22701 (KLR) where the Judge was guided by the finding in the case of Charles Mutua M’anyoro v Maria Gatiria [2009] KEHC 2589 (KLR). She urged the court to allow the appeal. Issue for Determination 14. The issue for determination herein is whether or not the appeal has merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14632/eng@2025-10-15 3

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Analysis and Determination 15. The role of an appellate court is to re-examine the evidence at trial and come up with its own conclusions while keeping in mind the findings of the trial court. In the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus: “ ...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of 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..." 16. The subject of the trial court’s ruling is a summons for revocation dated 12th February 2024. This was the second one. There had been another summons for revocation dated 14th August 2018. That one was heard, determined and dismissed by the same court through a ruling delivered on 08th December 2020 by Hon. J.W. Gichimu. This ruling is part of the proceedings making part of the present record of appeal. 17. The grounds for revocation as stated by Njagi Tiras Nyaga are identical to the grounds stated by the appellant in her summons for revocation. The trial court labored twice to hear and determine summons for revocation involving the same estate, beneficiaries, arguments and court. The second time the summons for revocation was filed, the matter was in fact res judicata from the start. It should never have been entertained by the trial court in the first place. 18. Section 7 of the Civil Procedure Act provides for res judicata as follows: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 19. Following the ruling delivered on 08th December 2020 by Hon. J.W. Gichimu, the summons for revocation was determined in the estate of the deceased. At that point, the respondents were at liberty to execute the grant and complete administration of the estate. This is because once a determination is made on a particular matter or set of facts, litigation must come to an end at some point. In the case of Lal Chand v Radha Kishan, AIR 1977 SC 789 the principle of res judicata was stated as follows: “ The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit.” 20. Even though the trial court entertained the summons for revocation and went further and took viva voce evidence, it is pointless for this court to re-examine that evidence and determine the appeal on its https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14632/eng@2025-10-15 4

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merits because the matter should have been held to be res judicata in the first place. The summons for revocation filed by the appellant herein had no merit before the trial court, hence the determination thereof is void and there is no place for an appeal on that later determination. Conclusions & Disposition 21. In my view, the right thing to do at this point is to set aside the latter ruling of the trial court delivered on 18th February 2025 because it is based on an illegality. The matter was in fact, res judicata. In the circumstances, I think the proper order to make is that the said ruling be substituted with a finding that the summons for revocation of grant dated 12th February 2024 is/was res judicata, an identical application having been determined by the same court on 08th December 2020. That ruling was not challenged on appeal, even though it was capable of being challenged. 22. I would make the following additional observations concerning this matter. From perusal of the trial file, I have noted that the applicant herein filed summons dated 04th July 2024 seeking orders inter alia that her signature as appended on the summons for rectification of grant be investigated by the DCI. This application was dismissed by the trial court. There is a consent to rectification of grant and it includes the signature of one Tiras Nyaga (deceased) who is the husband of the deceased who died in 1976. Succession was completed in his estate and an amended certificate of confirmation of grant was issued in the year 2007. The signatures on that consent for rectification of grant are questionable even to the untrained eye. 23. The Chief’s letter includes the applicant herein as a survivor of the deceased but the petition for letters of administration does not include the applicant. Were the matter properly on appeal against the first ruling on revocation, these issues would be considered conclusively by this court. 24. As already noted in conclusion, the appeal is dismissed as the subject matter thereof was res-judicata, a prior determination having been made on 8th December, 2020. 25. No order is made as to costs. 26. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 15TH DAY OF OCTOBER, 2025. ........................... R. MWONGO JUDGE Delivered in the presence of: Kariuki for Appellants Jane Wanjira Tirus 1st Respondent Rose Ruguru Tirus 2nd Respondent Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14632/eng@2025-10-15 5

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