Githuku Gitae v Joseph Ihugo Mwaura

the impossibility of a title being issued to Mwaura Gitae on 31/07/1992, eight months after his death on 12/11/. 3. In rejoinder, the Respondent maintained that his father, Mwaura Gitae, was the legitimate registered proprietor of the suit property, having acquired it in 1992. The Respondent relied on the certificate of title and official search. Further reliance was made on a letter marked JM-3 from Nyamathi Farmers’ Cooperative Society, which indicated Mwaura Gitae as the rightful owner of the parcel, serving to clear any doubts regarding the deceased’s root of title. The Respondent’s pointed that the application was unfounded and lacked merit. 4. The trial court in its judgement acknowledged the Applicant’s anomaly regarding the registration date and concluded that registration could have been efiected by the Nyamathi Cooperative Society on behalf of the deceased member, making death immaterial. The Court found that the Appellant failed to distinctly plead, particularize, or strictly prove fraud to the requisite threshold, citing the authority on burden of proof of more than a mere balance of probabilities. 5. The Appellant, being dissatisfied with the entirety of the Ruling delivered on 11/07/2024, lodged the instant appeal vide Memorandum of Appeal dated 01/08/2024. The Memorandum advances eight grounds of appeal and which the court coalesce into two main areas of complaint: the Trial Court’s substantive finding on the standard of proof, and the trial court’s procedural conduct. Issues, Analysis and Determination. 6. After careful consideration of the impugned ruling, the Memorandum of Appeal and the rival submissions of both Counsels, the Court frames the following issues for determination: (a) Whether the learned trial magistrate committed a fundamental error by descending into the litigation arena, relying on un-pleaded evidence from distinct proceedings; and, (b) Whether the Appellant established sufficient grounds under Section 76 of the Law of Succession Act. 7. Crucially, the Respondent has challenged the court’s jurisdiction to determine this appeal. The Respondent asserts that the determination whether the deceased acquired the registration fraudulently, illegally and procedurally requires the Environment and Land Court to interrogate the facts pointing to the root of the title. Jurisdiction, being so central in judicial proceedings, the court will first address this issue on a preliminary basis. 8. It is a well settled principle that a Court acting without jurisdiction is acting in vain. All it engages in is nullity. In Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 Others (2013) eKLR, the Court of Appeal expressed itself as follows on the centrality of jurisdiction: “ So central and determinative is the jurisdiction that it is at once fundamental and overarching as far as any judicial proceedings is concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it once it appears to be in issue in a consideration imposed on courts out of decent respect for economy and efficiency and necessary eschewing of a polite but ultimate futile undertaking of proceedings that will end in barren cui-de-sac. Courts, like nature, must not sit in vain.” 9. In Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR 12, the Supreme Court of Kenya stated as follows regarding the source of a Court’s jurisdiction: “ A Court’s jurisdiction fiows 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7077/eng@2026-02-20 2

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agree with counsels 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 … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 10. In the circumstances, the Appellant’s application, while framed as a revocation of grant under Section 76, is substantively a direct challenge to the root of title of the deceased. It is the Appellant’s case that the said land parcel originated from Nyamathi Society Naivasha Share Certificate No. 220, which belonged to his deceased father. That the deceased illegally, fraudulently, and unlawfully transferred the land parcel into his name to disinherit the rightful beneficiaries, citing the impossibility of a title being issued to Mwaura Gitae on 31/07/1992, eight months after his death on 12/11/1991. 11. The court wish to point that the Law of Succession Act grants the High Court and Magistrates’ Courts delegated power under Section 48 to entertain and determine disputes under that Act primarily concerning the distribution and administration of a deceased’s estate. However, the Constitution, under Article 162(2)(b) and the Environment and Land Court Act grant exclusive jurisdiction to the Environment and Land Court to hear and determine proprietary rights relating to the use, occupation of and title to land. 12. Courts have consistently held that the Probate Court is constituted for the singular purpose of distributing the property of a deceased person and only distributes assets that are undisputedly owned by the deceased. Succession proceedings are not the appropriate forum for determining disputes between the estate and third parties or rival claimants regarding land ownership. As a matter of fact, the Trial Court sitting as a Probate Court, was incompetent to pronounce conclusively on the validity of the title or the alleged fraud in its acquisition. 13. The court notes that the Respondent’s contention of there being Naivasha ELC Court Case No. 019 of 2024 is actively litigating the ownership of LR No. 2/211 between the Appellant and the Respondent was never disputed. In the minds of the court, the Probate trial Court should have acted as a gatekeeper, recognized the existence of the competing claim and protected the estate property by halting any proceedings concerning the distribution or transfer of the contested asset pending the determination by the ELC. Its decision to proceed with the matter rather than deferring the issue of the asset’s inclusion to the ELC, constituted a jurisdictional misapplication, although it reached a correct conclusion regarding the high burden of proof required for fraud. 14. That just as the trial court, this court has a probate court, lacks the statutory authority to inquire into whether the deceased acquired the title fraudulently or whether the post-mortem registration date of 1992, after death in 1991 was valid under land laws or cooperative society rules. Having so found, this Court will not deal with any of the other issues raised in the appeal. Such issues shall be dealt with by the appropriate Court. 15. The Ruling of the Honourable Principal Magistrate, delivered on the 11th day of July 2024 in Naivasha CMC Succession Cause No. 171 of 2020, is hereby set aside. This matter is hereby transferred to the Environment and Land Court in Nairobi. The Appellant shall bear the costs of the Appeal DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF FEBRUARY, 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7077/eng@2026-02-20 3

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PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7077/eng@2026-02-20 4

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