Grace Wangui Kamau & 2 others v Hannah Njoki Ndinguri & 2 others

b. 3. The learned trial magistrate erred in fact and in law in holding that the application for revocation was res judicata which was not the case. Parties put in written submissions. Appellants’ Submissions 4. The appellants submit that the deceased was polygamous in his lifetime with three wives and sixteen children. The appellants submit that the present succession cause was first filed in Kandara Law Courts before a District Magistrate by one Cleopa Gatuika, who is now deceased. He claimed a portion of land on L.R. NO. LOC 3/GICHAGINI/136. Upon the demise of that petitioner, the matter was taken up by Joseph Ndinguri, one of the sons of the deceased and is also now deceased. The deceased son is now is being represented by the 1st and 2nd respondents. The appellants argue that the said Joseph Ndinguri was fraudulent on obtaining the grant as he failed to include all the 16 children of the deceased thus disinheriting them. 5. The appellants further submit that despite the confirmation of grant, no physical sub division has taken place of the two parcels of land and all the families live, cultivate and are in occupation of their respective portions as physically allocated to them. 6. The appellants argue that the trial court summarily dismissed the application for revocation without considering its merits causing an injustice to them as they have been disinherited. The magistrate erred in holding that the matter is res judicata as it is a doctrine which is founded in civil matters and has limited application in succession matters. The appellants argue that in succession causes there are situations and cases where there are a number of beneficiaries and where any of them brings a revocation cause, it is a fresh complaint which has to be considered. The Respondents’ Submissions. 7. The respondents submit that the appellants are not strangers to the court and to the present matter as the 3rd appellant was a party in Kandara Succession Cause No. 114 of 1981 where he is recorded to have accepted the award of the court. Further, the appellants and the deceased dependants appeared before the Maragua Land Disputes Tribunal in LDT Case Number 99 of 2001 wherein the 1st appellant participated in the proceedings and stated in his evidence that the land belonged to the five sons of the deceased. 8. The respondents further submit that by a ruling dated 28/1/2004 by Honourable Alex Anambo, the court held that it lacked jurisdiction to interfere with the judgment delivered by Kandara District Magistrate Court where the 3rd appellant was advised to lodge an appeal. Having been dissatisfied with the said ruling, he filed another suit in the High Court Civil Case Number 874 of 2004 (OS) seeking to declare the certificate of succession issued by the Kandara Court a nullity. The suit was subsequently dismissed for want of prosecution on 23/1/2015. 9. The respondents submit that prior to his death, the deceased subdivided his parcels of land between his houses which borders still exist to date and that the same parcels have been partitioned to the respective parties with the appellants taking LOC.2/GICHAGINI/1564 and LOC.2/GICHAGINI/1567. 10. The respondents submit that the deceased died on 17/2/1979 before the Law of Succession Act came into place and therefore the law applicable for the administration of his estate is customary law. Pursuant to Section 2(2) of the Law of Succession Act, the respondents argue that the substantive provisions of the Act are not applicable to the estates of persons who died before the said Act https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19756/eng@2025-06-26 2

page 2 of 5

commenced but in the written laws and customs that applied at the date of death of the person in question. 11. The respondents submit that the summons for revocation have been brought under the wrong provisions of the law as there is no grant to be annulled or revoked. Further, the respondents submit that the appellants are dishonest and insincere with the court. Issue for determination 12. The main issue for determination is whether the appeal has merit. The Law 13. 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.” 14. 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 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." 15. 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 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. 16. The record shows that the deceased died on 17th February 1979 and was polygamous. The first wife Mary Wairimu is deceased while the second wife Dorcas Nungari and third wife Esther Wathagi are still living. The estate second the deceased comprised of two parcels of land being LOC 3/ GICHAGINI/136 and LOC 3/GICHAGINI/310. From the onset it is important to point out that the deceased died before the enactment of the Law of Succession Act which commenced in 1981. Further Section 2(2) of the Act provides:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19756/eng@2025-06-26 3

page 3 of 5

The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act. 17. It is therefore, correct that the estate of the deceased was subject to the written laws and customs applying at the date of his death which was Kikuyu customary law. 18. On further perusal of the record, this succession cause was instituted in the District Magistrate Court at Kandara in Succession Cause No. 114 of 1981. On 29th December 1981, Hon. CM DM III noted that all the notices of the award dated 11/12/1981 by clan (Muhiringa) elders had been served on all beneficiaries who were present in court. The 3rd appellant was present in court and he said that he accepted the award. The trial court then ordered that the land LOC.3/GICHAGINI/136 to be shared equally between the three houses of the deceased. The 3rd appellant subsequently filed an application dated 26th September 2002 seeking to annul the certificate of succession issued in the present cause claiming that the whole proceedings were a nullity because the case was heard by a magistrate who was of the rank of a District Magistrate III whereas the Law of Succession Act did not confer such jurisdiction. The court dismissed the said application delivering a ruling on the preliminary objection raised against it by one of the beneficiaries. The trial magistrate advised that the 3rd appellant ought to have lodged an appeal in the high Court on the of want of jurisdiction. 19. The appellants then moved the High Court vide High Court Civil Case No. 874 of 2004(OS) which later became High Court Civil Suit No. 5 of 2006 which was dismissed for want of prosecution. The appellants then filed the summons for revocation which is subject to this appeal, an application which is similar to the application dated 26/09/2002 and which was dismissed. Thus, it is my considered view that the matter had already been dealt with the lower court and the appellants ought to have prosecuted their matter in the high Court to its logical conclusion. Thus the lower court had already dealt with the said application where some of the appellants were the applicants. In my view, the issue of res judicata did arose only in regard of the 3rd appellant who was the applicant in the first application. In the ruling by Hon. Koome which is the subject of this appeal, the application dated …….was dismissed for being an abuse of the due process of the court since another revocation of grant had already been filed in Kandara Court and was struck out and parties advised to appeal. No appeal was filed ad the appellants decided to file another application for revocation of grant. 20. On the perusal of the record, it is clear that the appellants, were aware of the proceedings in the lower court as the 3rd appellant was in court and explicitly told the court that he accepted the award. Additionally, all the appellants participated in the Maragua Land Disputes Tribunal in LDT Case Number 99 of 2001. Therefore the appellants are being dishonest by claiming that the grant was obtained by fraud and misrepresentation of facts leading to some beneficiaries being disinherited when they participated in all the proceedings before the magistrate’s court. There is evidence from the respondents that at the time the appellant filed his application to revoke the grant, the estate had already been distributed in accordance with the award of the award of the elders which the 3rd appellant had consented to before the court together with the other beneficiaries. 21. In view of the foregoing, I find that the appeal lacks merit and is hereby dismissed. 22. Although this is a family matter, it is noted that the 3rd appellant has been very litigious even in matters where he had earlier given his consent. The 1st and 2nd appellants are not new to this cause for they have been at all times aware of the background facts of this case and have joined the 3rd appellant in the endless litigation. For this reason, the appellants shall meet the costs of this appeal. 23. It is hereby so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19756/eng@2025-06-26 4

page 4 of 5

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 26TH DAY OF JUNE 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19756/eng@2025-06-26 5

page 5 of 5