Boniface Bundi Muchemi v Mary Waturi Wambugu & 2 others

Background 3. This succession cause relates to the estate of Maingi S/O Ndiangui (hereinafter ‘the Deceased’) who died intestate way back on 19th January 1968. A copy of the Death certificate Serial Number 13xxx3 appears at Page 11 of the Record of Appeal. 4. The Appellant who claims to be a grandson of the Deceased filed in the chief Magistrates Court an application dated 22nd March 2023 seeking the following orders:“ (a) Spent. (b) That the Honourable Court be pleased to issue an order for status quo and a conservatory order to be registered as against Land Parcel number Tetu/ Kiriti/135 prohibiting eviction of the applicant, alienation, transfer and any further dealings by the Respondents and/or persons named in the confirmed Grant issued vide Nyeri Succession Cause No. 96 of 1974. (c) That the grant of letters of administration made to Harun Wambugu Muchemi and confirmed on 2nd January 1975 be annulled and/or revoked and all subsequent actions inter alia registered title deed by transmission. (d) That upon issue of order No. 3 the Honourable Court be pleased to appoint the Applicant Boniface Bundi Muchemi and/or such other persons from the lawful beneficiaries as the court may deem fit as administrator (s) of the estate of the Deceased and further redistribute the estate equitably among the Applicant and the lawful beneficiaries of the Deceased. (e) That the Honourable court do issue any further orders and/or directions as it may deem fit and necessary to serve the ends of justice. (f) That costs of this application be provided for.” 5. The above application was opposed by the Respondents who filed a Replying Affidavit dated 4th April 2023. The application was duly heard but was dismissed in its entirety vide a Ruling delivered on 17th May 2023 by Hon. M. M. Gituma Senior Resident Magistrate. 6. Being aggrieved by the decision of the Lower Court the Appellant filed this Memorandum of Appeal which is premised on the following grounds:“ 1. That the learned Magistrate erred in law and in fact in dismissing the Applicants Summons for Revocation of Grant on the basis that the original parcel of Land did not exist when she had earlier on in the same ruling held that a succession court has jurisdiction to revoke a grant under Section 76 of the Law of Succession Act Cap 160 irrespective of whether the original land that was the subject of distribution was in existence. A miscarriage of justice was thereby occasioned. 2. The learned Magistrate misdirected herself in law and in fact in holding and finding that the suit land which was later subdivided into Tetu/Kiriti/937 had subsequently been sold to bonafide purchasers for value without notice when the same had not been pleaded by either party. A miscarriage of justice was thereby occasioned. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4653/eng@2026-04-10 2

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3. The Learned Magistrate erred in Law and in fact in not finding and holding that the deceased had two wives (2) and twelve (12) [children] who were concealed from the court while petitioning for letters of administration intestate yet went on to dismiss the Applicants Summons for Revocation of Grant. A miscarriage of justice was thereby occasioned. 4. The Learned Magistrate erred in law and in fact in not finding and holding that the consent to obtain letters of Administration intestate of the estate Maingi Ndiangui was not obtained from the 2nd wife Gathoni W/O Maingi who ranked in priority with Muthoni W/O of Maingi the first of the deceased yet proceeded to dismiss the Applicants summons for revocation of Grant. A miscarriage of justice was thereby occasioned. 5. The learned Senior Resident Magistrate erred in law and in fact in not finding and holding that although customary law was applicable in the distribution of the estate of the deceased the administration of the estate should have still required all the beneficiaries of the estate of the deceased to consent on the mode of distribution. A miscarriage of justice was thereby occasioned. 6. The learned Trial Magistrate erred in law and in fact in holding that the estate of the deceased ought to have been distributed according Kikuyu customary law with each son of the deceased from the two houses getting an equal share yet went on to dismiss the Applicants summons for revocation of grant without considering whether Harun Wambugu who was certified as the only heir entitled to inherit from the deceased was a son of the deceased. A miscarriage of justice was thereby occasioned. 7. The learned Magistrate erred in law and fact in holding that the Applicants Summons for Revocation for Grant was statutorily barred when she had earlier on in the same ruling held that there is no limitation in law when a claim in succession can be filed. A miscarriage of justice was thereby occasioned. 8. The learned Magistrate erred in law and in fact in holding that the Applicants Summons for Revocation of Grant was statutorily barred when she had earlier on in the same ruling dismissed the Respondents Notice of Preliminary Objection which had raised an issue of in ordinate delay in filing the summons for revocation of Grant. A miscarriage of justice was thereby occasioned. 9. The learned Magistrate erred in law and fact in failing to order for the service of the summons for Revocation of Grant upon the current holders of title in Tetu/Kiriti 937 and 938 which was originally Tetu Kiriti/135 who are the daughters of Harun Wambugu in order to assist in the determination of this matter as per Rule 44(3) of the Probate and Administration Rules 1980. A miscarriage of justice was thereby occasioned. 10. The Learned Magistrate erred in law and in fact by failing to give direction that the Summons for Revocation of Grant ought to have been disposed of by way of viva voce evidence when the applicant had pleaded fraud in his affidavit which required to be proved by way of viva voce evidence. A miscarriage of justice was thereby occasioned. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4653/eng@2026-04-10 3

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11. The learned Magistrate erred in law and in fact in failing to consider the binding case law citied by the Applicant in his submissions that there is no statutory time limit upon which an application for Summons for Revocation of Grant can be brought under section 76 of the Law of Succession Act Cap 160. A miscarriage of justice was thereby occasioned. 12. The learned Magistrate erred in law and in fact in failing to consider the case of Nancy Njoki Ngugi & Another vs George Mungai Thiga & 3 others (2015) eKLR cited by the applicant in his submissions where the succession court revoked titles that were issued to 3rd parties who knew that the land belonged to the deceased which authority was binding on the trial court. A miscarriage of justice was thereby occasioned upon the Applicant. 13. The learned Magistrate erred in law and fact in failing to consider the reasons advanced by the Applicant in delaying to file his Summons for Revocation of Grant. A miscarriage of justice was thereby occasioned.” Analysis and Determination 7. I have considered the appeal before this court, the Record of appeal as well as the written submissions filed by both parties. 8. This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and 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 is 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 allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V Brown [1970] E.A.L As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide…..” 9. The application dated 22nd March 2023 sought prohibitory orders to prevent the Respondents from evicting the Appellant from the suit property and also sought to have the confirmed Grant issued on 2nd January 1975 revoked and that the Appellant be appointed as administrator of the estate. 10. It is not in dispute that the Deceased in this cause died way back in January 1968. The Appellant stated that he was a grandson of the Deceased a claim which was not disputed by the Respondents. The two https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4653/eng@2026-04-10 4

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questions which arise in the application for consideration of the court were firstly whether the Law of Succession Act Cap 160 Laws of Kenya was applicable in this estate. 11. 12. The current law of Succession Act came into force on 1st July 1981. Sections 2(1) and (2) of the Act provide as follows:2 (1) Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons. (2) 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. [Own emphasis] In RE Estate of Peter Gathogo (Deceased) [2023] eKLR, the Court stated that “ Thus whereas this cause was filed under the law of succession Act and the procedure therein applies thereto, the distribution of the estate of the deceased herein is not governed by the law of Succession Act of 1972 but by written Laws and customs applying at the time of the death of the deceased.” 13. In Re: Nduati Mbuthia (Deceased) [2015] eKLR Hon. Justice William Musyoka observed that “ Section 2(2) of the Law of Succession Act defines the application of the Law of Succession Act with respect to persons who died before the Act commenced on 1st July 1981……” 14. The application dated 22nd March 2023 as well as the prayers therein were premised upon Section 76 of the Law of Succession Act. The Deceased as we have stated before died in January 1968 way before the commencement date of the Law of Succession Act. The estate was distributed and administered before the Act came into force. The Act cannot be applied retrospectively thus the prayer for revocation of the Grant cannot be sustained. 15. The Appellant further sought orders to prohibit the Respondents from evicting him from Tetu/ Kiriti/135. At Page 25, of the Record of Appeal is a consent judgment dated 2nd January 1975 by which one ‘Harun Wambugu’ succeeded the land in question being Tetu/Kiriti/135. 16. The record reveals that the Appellants father (through whom he bases his claim) filed a civil case being Nyeri Civil Case No. 4 of 1985 seeking to be declared as owner of the suit land. That suit was dismissed for want of prosecution on 21st March 2025 (see Page 29 of the Record). The Appellant has now come back to court claiming ownership of the same parcel of land. The Appellant is claiming a beneficial interest in the suit land through his late father. However he has not proved to the satisfaction of this court that the suit land ever belonged to his late father in the first place. 17. The Lower Court in determining the estate of the Deceased found that one Harun Wambugu had succeeded the Deceased as proprietor of the suit land in the year 1975. The Deceased’s survivors moved to court to challenge this decision through a Civil Suit No. 4 of 1985 filed by the Appellants father Duncan Muchemi but said suit was dismissed. As things stand there exists no proof that the Appellant’s father had any legal interest in the suit land. I therefore cannot fault the finding of the trial magistrate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4653/eng@2026-04-10 5

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18. Further it is a fact that the parcel of land known as Kiriti/Tetu/135 no longer exists. The same was subdivided into two portions being Tetu/Kiriti/937 and Tetu/Kiriti/938. It is quite obvious that the dispute before the lower court revolved around the question of ‘Ownership” of the suit land. That question of ‘ownership’ is not a matter which can be determined in a succession cause. The Objector is making his claim before the wrong forum. 19. Matters relating to the ownership use and occupation of land have now under Article 162 of the Constitution of Kenya 2010 been mandated to be determined by a specialized court being the Environment and Land Court (ELC). Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:- 13. Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes - (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land. [Rev. 2012] No. 19 of 2011 Environment and Land Court 9 [Issue 1] 20. Therefore, the correct and proper forum before which the Objector ought to ventilate his claim to the suit property is the ELC. The Environment and Land Court is the only court exclusively mandated by law to determine the question of ‘ownership’ of the suit land. 21. In Re Estate of Stone Kathubi Muinde (Deceased) [2016] eKLR Hon. Justice William Musyoka held that:“ Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through civil process in a civil suit properly brought before a civil court in accordance with the provisions of the Civil Procedure Act and the Civil Procedure Rules. This could mean filing suit at the magistrate’s courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” (own emphasis) 22. Finally this court cannot ignore the period of time which has elapsed since the estate was finalized. The grant herein was confirmed in the year 1975. This application was filed in May 2024 - more than fifty (50) years after the Grant had been confirmed. Whilst there is no limitation of time in succession cases litigation must surely come to an end. Fifty (50) years amounts to an inordinate delay in staking a claim https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4653/eng@2026-04-10 6

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to the estate of the Deceased. It is questionable that this claim is being raised several decades after the distribution of the estate. 23. Finally I find no merit in this appeal. The same is dismissed in its entirety. Costs will be met by the Appellant. DATED IN NYERI THIS 10TH DAY OF APRIL 2026. …………………… MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4653/eng@2026-04-10 7

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