Geoffrey Njogu Gichuhi v Danson Githeru Muchiri & 2 others

3. Directions were issued that parties put in written submissions and the record shows that the appellant complied by filing his submissions on 3rd April 2025. The respondents on the other hand had not filed their submissions by the time of writing this judgment. Appellant’s Submissions 4. The appellant submits that the trial court by expunging his name from the certificate of confirmation of grant disinherited him whilst no party had moved the court for such orders. Further, the appellant argues that he was not given a chance to state his case and challenge the said removal. The appellant argues that the respondents filed an application praying that the certificate of confirmation of grant be rectified by expunging his name from the list of heirs however the learned magistrate Hon. C.A. Otieno-Omondi rendered her ruling on 28th February 2019 declining to rectify the certificate of confirmation of grant. Thus, the appellant argues that by the trial magistrate, Hon. M. W. Wanjala proceeding on his own motion to expunge his name from the certificate of confirmation of grant sat on his own appeal against the ruling delivered by Hon. C.A. Otieno-Omondi delivered on 2nd February 2019. The appellant further argues that the trial magistrate erred in proposing that he files a civil suit to recover the purchase price. Issue for determination 5. The main issue for determination is whether the appeal has merit. The Law 6. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123: “ …..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 into account of particular circumstances or probabilities materially to estimate the evidence.” 7. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:An appeal to this court from a trial by the High 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. 8. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:a. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; b. That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19731/eng@2025-06-26 2

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c. That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. Whether the appeal has merit. 9. From the record it is not disputed that the appellant is not a beneficiary of the estate of the deceased but is a purchaser for value over 0.4 acres out of LOC 5/KABATI/353 which forms part of the estate of the deceased. The 1st respondent applied for letters of grant of administration over the deceased’s estate jointly with the appellant and a grant was issued to them on 14th November 2013 and confirmed on 15th December 2014. However, the 1st respondent filed an application for rectification of the grant to expunge the appellant’s name from the list of heirs on the premise that he intended to sell a portion of the estate for a consideration of Kshs. 400,000/-. According to the 1st respondent, he entered into a sale agreement with the appellant dated 30th May 2012 for purchase of 0.4 acres of the suit land forming part of the estate for a consideration of Kshs. 400,000/- but the appellant had only paid Kshs. 267,000/-. Based on lack of performance of the agreement, the 1st respondent sought to have the appellant expunged from the list of heirs in the grant. On 7th August 2019, the trial court noted that the dispute was turning into a civil suit and held that the appellant should not have been included in the list of beneficiaries in the beginning as he was a purchaser. The trial court further directed that the issue of whether he had paid the purchase price was an issue to be determined in a civil court and not the court sitting as a succession court. 10. On further perusal of the record, the sale agreement was entered into on 30th May 2012 before the court issued of letters of administration to any of the respondents. Thus, the said sale was an act of intermeddling with the estate of the deceased pursuant to Section 45 of the Law of Succession Act. Furthermore, the 1st respondent had no business including the appellant as an administrator of the estate of the deceased as he was not a beneficiary of the estate. Additionally, there was a dispute between the appellant and the 1st respondent as to whether the appellant had paid the purchase price which was an issue to be determined in a civil suit. Thus, it would be unfair and unjust to retain the appellant in the succession cause yet he was not a beneficiary to the estate whist at the same time holding the rightful beneficiaries hostage to their inheritance in the estate. 11. It is not disputed that the appellant had joined the succession cause as an unidentified party from inception to defend his right as a purchaser. On the petition, he is indicated as a “party” while all the other beneficiaries were children of the deceased. There is no doubt that he was brought on board by the respondent. The court issued the grant to both the 1st respondent and the appellant pursuant to their petition. The court had no information at that time that the appellant had come in the case as a purchaser. In my view, this move was wrong on part of both the 1st respondent and the appellant who were the vendor and the purchaser respectively of 0.4 ha. of L.R. LOC 5/KABATI 353. It goes without saying that the court was unaware of the sale agreement between the parties. Had the court had that information, I am of view that it would not have issued the grant and proceeded to confirm it. Although all the beneficiaries had agreed that the appellant be treated as a beneficiary and be bequeathed of the portion he had purchased, this was contrary to the law of Succession. The appellant ought to have claimed his interest in the estate as a purchaser. He would have been protected by Section 93 of the Act as a purchaser unless it was established that he was not a purchaser in good faith. 12. On 7th August 2019, before the court presided over by Hon. Wanjala, the counsel for the 1st respondent presented his application for rectification of grant seeking to remove the name of the appellant for he had not paid the full purchase price for the land and to substitute his name in the grant with that of the 1st respondent. The court learnt from the said oral submissions that the appellant was a purchaser https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19731/eng@2025-06-26 3

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and that he had been included in the list of beneficiaries. The court on its own motion ordered that the appellant’s name be expunged from the record the appellant was not present in court. 13. The appellant argues that the magistrate Hon. M. Wanjala erred in that he sat on appeal on the ruling of his colleague Hon. Clara Omondi. I have perused the ruling of Hon. Omondi delivered on 23/02/2019 and the proceedings of M. Wanjala of 7th August 2019. In the summons dated 02/07/2018 the 1st respondent sought for rectification of grant to expunge the name of the appellant from the grant that had bequeathed him 0.4 ha as a “beneficiary” while he was a purchaser. The Hon. Magistrate declined to grant the orders on the ground that the orders on the ground that the parties had introduced issues of civil nature in the Succession Cause which, if the same were to be entertained, would cause delay in the Succession Cause. 14. The background facts demonstrate that the appellant had joined the case as a stranger though with the consent of the beneficiaries. He had been included as a beneficiary in the grant. It was for this reason that the orders of 7th August 2019 were made. 15. In my considered view, the orders of 7th August 2019 do not amount to Hon. Wanjala sitting on appeal on the ruling of Hon. Omondi. It is noted that Hon. Omondi had declined to give the orders sought on reasons given in her ruling while Hon. Wamjala made his orders upon realizing that the appellant was not a beneficiary all along, fact which the appellant does not deny. It is correct that the appellant was not heard in court before the orders were made. However, even if he was heard, the facts to justify the inclusion of his name as a beneficiary. Rule 73 of the Probate and Administration Rules provide: “ Nothing in these Rules shall limit or otherwise affect the inherent power as may be necessary for the abuse of the process of the court.” 16. Based on the facts of this appeal, the appellant had indeed abused the court process in holding himself out as a beneficiary. The magistrate was therefore within the ambit of the law in making the orders of 7th August 2019. The appellant has legal right to follow up on his interests in respect of the land in civil proceedings 17. In conclusion I find that this appeal has no merit and I dismiss it accordingly. 18. Due to the facts of this case where the appellant lost his money in a land sale agreement that failed, I hereby direct that each party meet their own costs. 19. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19731/eng@2025-06-26 4

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