Ismail & 3 others v Ali & 3 others

consider the same on merits until various cases pending in the lower courts about parcel Nos 985 and 986 were concluded, which he says that all cases have now fully terminated. 3. He stated that vide Matungu Land dispute cause No. 8 of 2005, he sued both the adminisatror and his mother Zainab Wanga Namukur about ownership of 1 acre from parcel no.985 which he claimed that his deceased father had purchased in 1974 from the deceased, Iddi Makokha Mwima and on 14 th December 2006, the tribunal directed the 1 acre portion of land be distributed to the 1 st applicant during the succession proceedings and that the decision of the tribunal was adopted as an order of the court on 12 th February 2010in Kakamega CM award No.39 of 2007. 4. Similarly, the 2nd applicant's father, the late Patrick Chesino, sued the administrator and his mother, Zainab Wanga, in the Matungu Land Dispute Tribunal Cause No. 29 of 2004 on 15 th November 2005 for the land parcel No 986 measuring 4 acres, which was successful and adopted as an order of the court on 28th April 2006. 5. They aver that the administrator instituted the proceedings without informing them of the liabilities and proceeded to distribute the parcel No.985 and 986 to himself, contrary to the decision of the tribunal. 6. The petitioner/ respondent Ismail Mwima Makokha raised a preliminary objection against the review of the confirmation of the grant, which was granted on 27th November 2014. HC SUCCESION CAUSE NO.661 OF 2013 PAGE 2

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7. He claimed that the court, Hon Njagi, had dismissed the application for revocation of the grant on 29th May 2020. He further stated that the application is Res Judiacta as a similar application for review had been determined by Justice W.M Musyoka on 28 th May 2021. He further claimed that the court should dismiss the application for review, stating that it does not raise any new issue not within their knowledge at the time of the review, and that the application had been heard on 14th August 2020 and determined. 8. In a ruling delivered on 30 th April 2025, this court halted its ruling for review until it had the opportunity to see the final decision in Mumias MCL &E No. 324 of 2017 (b), Mumias MCL & E 127 OF 2018 (C), and Kakamega MCL& E No. 646 of 2018. 9. On 10th September 2025, the applicant’s counsel swore an affidavit where he confirmed that the above-mentioned matters had already been concluded by stating that Mumias Civil Case No.324 of 2017 was dismissed for want of prosecution on 20 th September 2023 and that he even filed a bill of costs on 26 th September 2023 and further that MCLE Cause No. 127 of 2018 was concluded. A judgment was delivered on 21st June 2019, for which he attached a copy of the judgment. 10. He confirmed that the 2nd applicant, who was the plaintiff in Kakamega MCL Cause no 646 of 2018, withdrew the claim on 12 th October 2022 and further that the 1 st Applicant filed Kakamega MCLE Cause No. 304 of 2018, which was determined on 1 st October 2019. HC SUCCESION CAUSE NO.661 OF 2013 PAGE 3

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11. He asserts that the matters listed by the Hon. Court on 30 th April 2025 had been conclusively determined and, as per the holding of Hon. Njagi J made on 28 th May 2020, there is no legal impediment to this court proceeding with the revocation. Analysis and judgment 12. I have had an opportunity to look at the application, the affidavit by counsel and the judgments attached. 13. I note that the certificate of confirmation of a grant was confirmed on 27th November 2014, where the administrator Ismail Mwima Makokha was granted L.R No. N. Wanga/Matungu/985 and L.R No. N. Wanga/Matungu/986 as a whole. 14. In a ruling delivered by Justice J.N Njagi dated 29th May 2020, the trial court, in addressing the application for revocation of the grant dated 22nd October, 2019, declined to consider the application for confirmation of the grant until the issues raised at the Environment and Land Court were heard and determined. 15. As per the attached judgments by the applicants, the court had finalised the decision in Mumias MCL &E No. 324 of 2017 (b), Mumias MCL & E 127 OF 2018 (C), and Kakamega MCL& E No. 646 of 2018. 16. The applicants have now placed before the court evidence demonstrating that the matters referred to by both Njagi J and this court have indeed reached their conclusion. The record shows that Mumias MCLE No. 324 of 2017 was dismissed for want of prosecution on 20th September 2023, Mumias MCLE No. 127 of HC SUCCESION CAUSE NO.661 OF 2013 PAGE 4

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2018 was determined by judgment delivered on 21st June 2019, Kakamega MCLE No. 646 of 2018 was withdrawn on 12th October 2022, while Kakamega MCLE No. 304 of 2018 was determined on 1st October 2019. These facts have not been controverted by the respondent. 17. In my view, the conclusion of the court proceedings upon which both justice J. N Njagi on 29th May 2020 and this court on 30th April 2025 had deferred determination constitutes new and important matter within the meaning of Order 45 Rule 1. At the time the certificate of confirmation of grant was issued, and indeed when the earlier applications were considered, those court proceedings had not been finally concluded. Their subsequent determination fundamentally changes the outcome upon which the earlier decisions were premised. 18. The respondent has equally relied on the ruling of Musyoka J delivered on 28th May 2021. However, nothing has been demonstrated to show that the learned Judge finally determined the applicants' substantive claim concerning the effect of the tribunal awards after the conclusion of the pending land cases. The respondent has merely asserted res judicata without demonstrating that the issues presently before court were heard and finally determined. 19. The Court of Appeal in Uhuru Highway Development Ltd v Central Bank of Kenya & another (Civil Appeal 36 of 1996) [1996] KECA 102 (KLR) (12 November 1996) held that a plea of HC SUCCESION CAUSE NO.661 OF 2013 PAGE 5

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res judicata must be established with precision, and the burden lies on the party raising it. 20. The applicants' complaint is that prior to confirmation of grant, there existed decrees adopted as judgments of competent courts recognising their interests in parcels North Wanga/Matungu/985 and 986. Whether those decrees constitute liabilities binding upon the estate and whether the confirmed grant ought to be interfered with are substantive issues that have never been determined after the conclusion of the land disputes. 21. This court is also mindful of Section 76 of the Law of Succession Act, which empowers the court to revoke or annul a grant where its proceedings were defective in substance or where material facts were concealed from the court. The section provides, in part, that: "A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides... that the proceedings to obtain the grant were defective in substance; or that the grant was obtained fraudulently by making a false statement or by concealment from the court of something material to the case." 22. If indeed the certificate was confirmed without disclosure of existing court decrees affecting the estate property, it would then be a matter that needs to be addressed conclusively under Section 76. It cannot be shut out on claim of res judicata where the earlier HC SUCCESION CAUSE NO.661 OF 2013 PAGE 6

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court expressly postponed determination pending the conclusion of cases touching on the estate of the deceased. 23. This court cannot ignore that the applicants' claim is anchored on decisions of the former Land Disputes Tribunal that were adopted as judgments by the court, allegedly recognizing their interests over parcels North Wanga/Matungu/985 and North Wanga/Matungu/986. Whether those interests ultimately affect the distribution of the estate is a question that ought to be reflected in the certificate of confirmation if they remain valid and enforceable. A succession court should not sanction a distribution that disregards existing legal obligations attaching to estate property. 24. This court is further guided by Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, which preserve the inherent jurisdiction of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. The court's primary duty in succession proceedings is to ensure that the estate is distributed fairly and in accordance with the law after taking into account all lawful interests affecting the estate including the liabilities. 25. I am therefore satisfied that the applicants have demonstrated sufficient cause for review. The evidence now presented by the applicant’s counsel, Kundu Nigel Wesutsa, through an affidavit dated 10th September 2025, was not available at the time the rulings were rendered because the identified land cases HC SUCCESION CAUSE NO.661 OF 2013 PAGE 7

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had not then reached their conclusion. The basis upon which the court deferred consideration has now ceased to exist. 26. In the circumstances, maintaining the certificate of confirmation of grant in its present form would defeat the very purpose of the earlier rulings, which anticipated that upon conclusion of the land proceedings, the succession court would revisit the distribution of the estate in light of the outcome of those proceedings. The interests of justice demand that the certificate of confirmation be reviewed to accommodate the legal position emerging from the concluded litigation. 27. Consequently, the summons dated 5 th November 2024 is hereby allowed. 28. The certificate of confirmation of grant dated 27 th November 2014 is hereby reviewed. 29. The mode of distribution shall stand varied as follows: i. North Wanga/Matungu/985 measuring approximately 3.4 acres shall be distributed as follows: a) Ismail Mwima Makokha – 2.4 acres. b) Ali Makokha Wangatia – 1.0 acre. ii. North Wanga/Matungu/986 measuring approximately 4 acres shall be distributed as follows: a) Estate of the Late Patrick Were Chesino – 4 acres. b) Ismail Mwima Makokha – Nil. 30. The Deputy Registrar shall issue a fresh certificate of confirmation of grant reflecting the above distribution. HC SUCCESION CAUSE NO.661 OF 2013 PAGE 8

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31. Each party shall bear its own costs. 32. Right of Appeal 30 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 17TH DAY OF JULY, 2026. S.N MBUNGI JUDGE In the presence of:CA: Angog’a/Velma Mr. Mokaya for the Applicant present. Petitioner present. Mr. Kundu for the Applicant/Objector present online. HC SUCCESION CAUSE NO.661 OF 2013 PAGE 9

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