Mary Alungata Okodoi v Michael Matata

7. Michael Matata was aggrieved and filed summons for revocation of grant dated 10-12-2020 citing grounds of concealment, fraud and that some beneficiaries were left out. 8. The record shows that the said application was heard by Justice Mrima and vide a ruling dated 30-4-2025 Justice Mrima upon evaluating the evidence tendered by objector and the respondent deferred the ruling on grounds that a citation No.9 of 2009 had been mentioned by the respondent. That the respondent justified her petition for letters as a daughter in law to the deceased after the applicant, the only surviving child of the deceased failed to take out the letters of administration with respect to the estate of his late mother. 9. Justice Mrima who entertained the summons for revocation of grant dated 10-12-2020 later amended to 20-12-2020 suspended the ruling/judgment pending determination of the whereabouts of the alleged Citation Cause No.9 of 2009. 10. This court took over this matter and efforts were made in the civil registry to trace the cited Citation Cause No.9 of 2009 but the efforts turned futile due to lapse of time. This court however finds that justice can still be dispensed without a Citation Cause No.9 of 2009. In any event the petitioner/ respondent ought to have exhibited the same in her response to the summons for revocation of grant which appears to have been settled by a consent entered on 2-6-2021 where the objector and the petitioner were both appointed joint administrators of the estate of the deceased herein. 11. The record shows that both parties were granted a chance to present oral evidence on their respective preferred mode of distribution. 12. The objector filed a proposed mode of distribution dated the 8th June, 2021 in the form of an Affidavit and another one dated the 22nd October, 2022 where he deponed that the petitioner was not entitled to any portion of the suit land as the same belonged to one James Kamau Githomi. He deponed that the petitioner was his sister-in-law married to his deceased brother, Humphery Cheboto Matata who was a son to the deceased herein. The objector asserted that before his mother died she was unwell and that she had offered the land as security to one who provided the finances for her treatment on an understanding that the sums will be refunded. 13. He further deponed that the petitioner was entitled to a share of land belonging to their deceased father which was located in Teremi, in Mount Elgon. 14. The said James Kamau Githomi also had filed an application to be allowed to come on record as an interested party vie application dated the 25th January, 2021 but failed to move the Honourable Court on the same. Directions therefore were never issued. 15. The petitioner also filed her mode of distribution dated the 9-7-2021 in the form of an affidavit deponing that she was entitled to 4 acres of the land in question as it is the portion her deceased husband and herself have been ploughing and occupying. She deponed that the portion of land was given to them by the mother-in-law, the deceased herein. She further deponed that she was not aware of the land in Teremi and asserted that she should not be forced to stay on a strange land. 16. The objection was heard by way of viva voce evidence where the objector testified and called 3 witnesses and the petitioner also testified and called 2 witnesses on the mode of distribution of the deceased's estate. OBJECTORS CASE 17. While giving his oral evidence, the objector testified that the deceased had 11 children being 4 sons and 7 daughters. He further stated that prior to her death, the deceased, himself and his wife Mary Chemutai https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 2

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were the only ones who lived on the subject parcel and that the late Humphrey lived on a piece of land in Kitale Main Prison farm and that he had also been given another parcel of land in Bungoma County known as L.R. NO. ELGON/KAPKATEE/50. The objector testified that the petitioner was only married to Humphrey after the death of the deceased and as such she knew nothing about deceased's transactions on estate. The objector further stated that Humphrey did not live long with the petitioner and that when Humphrey died the petitioner was again married by a teacher and has not lived with the family of the deceased in this cause, but with her subsequent husband. 18. It was his case that he and 2 of his siblings had been instructed by the deceased to enter into the agreements with James Kamau Githiomi given that the deceased was unwell. That the initial agreement was in 1985 where the sum of Kshs. 150,000/ - was paid. That the second payment was on 4th October 2010 and the sum of Kshs. 240,000/ - was paid and that later on 20th November 2018 adding that the total payments made was Kshs. 900,000/ - 19. The objector posited that the deceased had challenges in refunding the said sums to Jams Kamau Githiomi on account of her continued failing health and that since none of the family members were able to make good the refunds, the deceased then informed the family and James Kamau Githiomi that even if she died, her children should refund the sums failure to which the land be sold to James Kamau Githiomi forthwith. 20. According to the objector, when the deceased died, the family could not repay the sums to James Kamau Githiomi and the land was eventually sold to him in accordance with the wishes of the deceased. That during the lifetime of Humphrey there was consensus in the family to that end among the three children of the deceased. That the family members then shared the remainder of the purchase price and the matter was settled with James Kamau Githiomi taking possession of the land. 21. On cross-examination, the objector reiterated that the petitioner was married to Humphrey after the death of the deceased and lived with her then husband in Bungoma County and that she only began her intrusion on the land after her husband's death. 22. He stated he objected to the award of the tribunal and denied knowledge of a Citation Cause No.9 of 2009. His position is that he was never served. 23. He further denied the suggestion that he was a bidding for the purchaser. 24. The objector further clarified that all the three children were settled by the deceased prior to her death and that whereas the late Humphrey was given land in Bungoma, he was given a parcel of land in Mt. Elgon where he resided with her sister Mary. The objector vehemently denied evicting the petitioner from the estate stating that the petitioner has never lived there. He stated that James Githiomi has been residing on the state and the petitioner was just out to cause problems in the family despite the deceased having taken care of her affairs well before death. He further stated that the structure which James Kamau Githiomi pulled down on the land belonged to him and not the petitioner. 25. On re-examination, the objector clarified that the family acted in line with the wishes of the deceased and received money as proceeds from the land from James Kamau Githiomi and that the remainder of the purchase price was shared among the beneficiaries and that, to date, no one was willing to refund James Kamau Githiomi his money, if the family was to rescind the wishes of the deceased. The objector prayed that it was only proper that James Kamau Githiomi be granted the land to bring the matter to closure. 26. Chemutai Mary Matata, testified as PW2. She was the objector's wife and she adopted her statement as part of her evidence. It was her testimony that she resided on the land with her husband and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 3

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deceased since 1978 until 2007. She recalled that sometimes in the 1980’s the deceased fell ill and since she needed money for treatment and she had none, the deceased sent Humphrey to call James Kamau Githiomi and that after discussions, it was agreed that the estate be used as security. That James Kamau Githiomi would advance money to the deceased for treatment and the money would be refunded and if not, then the land would stand sold to James Kamau Githiomi. To that end, PW2 stated that she was aware of an agreement signed in1985 for Kshs 150,000/ -. She, however, denied being involved in other transactions. 27. PW2 also confirmed that the petitioner was married after the death of the deceased and that she never lived on the subject land and is only laying claim on the land after the death of her husband. To her, it was Githiomi who took over possession of the land in 2007 when the objector and herself moved out after the sale of the land to Githiomi. She was aware that the petitioner lived in Bungoma County, on a parcel of land given to the husband by the parents, when she was married to Humphrey and she reiterated that the petitioner never lived on the land subject of these proceedings at any one time. 28. On cross-examination, PW2 stated that when she was married to the objector, they briefly lived at Teremi in Bungoma County before the objector moved to stay with the deceased at that land since 1978. She clarified that when she moved out of the land after the sale to James Kamau Githiomi, it was James Kamau Githiomi who demolished their mud house which they left behind. 29. She further faulted the petitioner for causing problems in the family. That she even cut trees on the subject land without the authority of James Kamau Githiomi. She denied that it was the objector and herself who sold the land to James Kamau Githiomi. 30. James Kamau Githiomi testified as PW3. It was his evidence that the deceased was his neighbour in Maridadi Farm Scheme. That when she fell ill, the deceased's son, Humphrey, approached him and told him that the deceased wanted to see him. To that end, he met the deceased where she asked for finances for treatment and she offered her land as security. 31. He stated that he agreed to assist the deceased on the understanding that the deceased would refund the money and in default, her children would and in the event they were also unable to make good the refund, then the land would be sold to him. That to that end, an agreement dated 20th February 1985 was executed by Humphrey on behalf of the deceased for the sum of Kshs. 150,000/ -. He clarified that the deceased died in 1985 after the first agreement and on pursuing his refund, the children were unable to repay and they agreed to sell the whole land to him through subsequent agreements. He confirmed that he paid the entire purchase price and produced the agreements as Exhibits JKG 1-5. 32. It was PW3’s testimony that he begun using the land in 2007 after completion of the sale agreements and delivery of possession by the objector who lived on the land with the deceased. He stated that the objector had built a house and lived there but when he took possession, he demolished it. He reiterated that the deceased and Humphrey sold him the land and maintained that the petitioner has not been living there and has never lived there. 33. He further stated that whereas the petitioner claimed to have been using the land from the year 1988, he only saw the petitioner in 2021 when she invaded the land with a gang of ten, destroying the fence and cutting trees. 34. It was his evidence that he bought the land for Kshs. 1 million and paid the entire amount. He denied being in forceful occupation of land and denied any knowledge of any succession proceedings instituted by the petitioner until when the petitioner descended on the land with goons and destroyed the fence and cut down the trees. PW3 further stated that he was not aware of the Citation as well as the case in Kitale CMCC No. 36 of 2008 between the petitioner and the objector. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 4

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35. PW3 re-affirmed that he executed the first agreement three years before the petitioner was allegedly married. He reiterated that he bought the land pending the succession proceedings but more so on the strength of the deceased's word that if repayment was not made, the land be offered to him for sale. He prayed for full possession of the land since he bought it for value. 36. Lazaro Mabat Wakhungu testified as PW4. He stated that he occupied Plot No. 68 in Maridadi Farm and that he was neighbour to the deceased and James Kamau Githiomi (PW3). He stated that he has been living on the land since 1972 and knew the deceased and her son late Humphrey both died and were buried that piece of land. 37. He claimed further that whereas the objector lived on the land, the petitioner never lived there at all. He confirmed that James Kamau Githiomi (PW3) has been in occupation since 2007 and only got to know of the petitioner when she invaded the land. PETITIONERS CASE 38. The petitioner Mary Alungata Okodoi (DW1) in her oral testimony stated that the deceased died in 1985 and that her husband, Humphrey, died in 1997. She stated that she was married in 1988 and all along, lived on the subject land where her husband and one of her children were both buried. 39. The petitioner denied that her husband signed any agreement nor was he given any money. She claimed that the handwriting in the agreement was not that of Humphrey. It was her position that the agreement was entered long after the death of the deceased. The petitioner claimed to only have heard of a purchaser, known James Kamau Githiomi, who destroyed her structures unlawfully. She stated that she reported him and obtained OB against him and the objector. It was her testimony that the objector has never lived in the land as he lived in Teremi in Saboti. It was her testimony that she initially filed a case through Land Tribuna1 where she was allegedly given four acres and the objector given 1 acre because he had another land in Saboti. She urged the court to abide by the findings of the Tribunal. 40. In cross-examination, she stated that she lived in Maridadi village, but the objector evicted her and demolished her house. She, however, admitted that she was not married in 1985. She further conceded that the deceased was unwell and was taken to Kenyatta National Hospital. She did not know where the money came from but heard the objector saying that the deceased consented to the sale of the land. It was her evidence that she was evicted in 2007 by the objector and that she was the one who planted the trees in 1991, after she buried her child on the disputed parcel. 41. She maintained that she was married by the late Humphrey Matata and that she resided on the subject parcel until she was evicted after the demise of her husband. 42. John Mika Wanyonyi (DW1) and Janerose Chemnotoi Ndiwa (DW2) also testified and largely supported the position taken by the petitioner. The petitioner prays that she be allocated 4 acres as per the decision of the Tribunal. 43. This court has laid out both the objector’s case and the petitioner’s case as ably captured by Justice Mrima. The main issues for determination are as follows; a. `Whether it is proper for the petitioner to take out letters of administration in respect to the estate of the deceased herein b. Whether the purchaser is entitled to the estate of the deceased. c. What is the appropriate mode of distribution of the estate of the deceased? https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 5

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44. (a) Whether the petitioner was entitled to take out letters of administration in this cause. The Law of Succession Act clearly gives the primary right to obtain a grant of letters of administration of an estate first to a surviving spouse then the children of the deceased and in the absence of a spouse or children, the close relatives in order of consanguinity. 45. In situations like the present case where the deceased was survived by a son, the said son who is the objector herein enjoys priority over the daughter in law who is the petitioner herein. 46. However in light of the claims of citation which cannot be ascertained and in light of the consent entered between the objector and the petitioner, this court will treat the issue of personal representative as water under the bridge. 47. However this court notes that in the present case, there is no evidence adduced to show that the petitioner first obtained a grant of representation in respect to the estate of her late husband, through whom she could claim an interest in the deceased's estate herein. In the absence of such grant, the petitioner lacks the legal capacity to assert or enforce her deceased husband's proprietary or succession rights in her own name. 48. It is a settled principle that the estate of a deceased person can only sue, be sued, or advance claims through a duly appointed personal representative. Consequently, the immediate son of the deceased, being the direct beneficiary and person enjoying priority under Section 66 of the Law of Succession Act, was the proper person to take out letters of administration during his lifetime, and upon his demise, his entitlement could only devolve through the legal representative of his own estate, rather than automatically vesting in his widow. 49. This position has consistently been affirmed by the superior courts. In Trouistik Union International & Another v Jane Mbeyu & Another (Civil Appeal No. 145 of 1990) [1993] KECA 89 (KLR) (19 October 1993) (Judgment), the Court of Appeal held that ‘no person has locus standi to bring or defend proceedings on behalf of a deceased person's estate without first obtaining a grant of representation’ 50. More recently, in In re Estate of Catherine Nduku Malinda (Deceased) [2020] KEHC 8389 (KLR) Odunga J. (as he then was) stated: “ In my view a daughter-in-law may lay a claim as a beneficiary not in her own right but as a legal representative of a deceased son. In other words, the legal representatives of a deceased's dependants may properly stake a claim to the estate of a deceased person on behalf of legally recognized dependants." 51. The Court therefore finds that, while the petitioner's children are entitled to benefit by representation of their late father under Sections 35, 38 and 41 of the Law of Succession Act, the petitioner's own participation in these proceedings cannot be founded upon an independent right of inheritance but only upon lawful representation of her late husband's estate, which has not been demonstrated in the present proceedings. The petitioner’s position is this cause as an adminstratrix is rather precarious because of the clear provisions of the law. I will however leave the matter at that in view of the consent of parties making an administratrix in this cause. 52. (b) Whether Mr James Kamau Githiomi is entitled to the estate as a purchaser. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 6

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This court finds that though the purchaser was not formally made a party as an interested party in this cause, his right to be heard under Article 50(1) of the Constitution was respected. Article 50(1) of the Constitution provides; “ Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 53. It is in the above spirit perhaps that the purchaser in this cause was given a chance to present his evidence. 54. This court is alive to the provisions of Law of Succession Act which protect an interested party where the transaction is valid within the meaning of Section 93(1) of the Law of Succession Act. Section 93(1) of Law of Succession Act provides; “ All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act, by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.” 55. The protection above only affects legitimate transactions of course, Section 93 Law of Succession Act would not protect a fraudulent dealing, as held by the Court of Appeal in Musa Nyaribari Gekone & 2 others v Peter Miyienda & another [2015] KECA 573 (KLR) where the effect of the provision is discussed as follows: “ After setting out the provisions of section 93 of the Law of Succession Act, the learned judge stated that the object of that provision “is to protect dealings with the legal representative of the deceased who must have as personal representatives assumed deceased’s authority to deal with the estate of the deceased.” The judge then considered the report of the Commission on the Law of Succession, 1968; and held that under section 55(1) of the Law of Succession Act, if the disposal of immovable property is done in contravention of the confirmed grant, the same would be an invalid exercise of the powers of the legal representative and may be invalidated under section 45 of the Act.” 56. It is clear therefore flowing from the above that before any purchaser can cite the above section as a shield he or she must demonstrate that the provisions of Section 55 and 82 of the Law of Succession Act are adhered to. Section 55(1) of Law of Succession Act provides; “ No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by section 71.” A purchaser should therefore first demonstrate that the person he dealt with was either the deceased himself or a personal representative. This is because under Section 82(b) (ii), any sale of deceased’s assets before confirmation of grant is void. Section 82(b) (ii) provides; “ “ (b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 7

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Provided that— 57. (i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and (ii) no immovable property shall be sold before confirmation of the grant.” In Jecinta Wanja Kamau v Rosemary Wanjiru Wanyoike and Another [2013] eKLR where the appellant therein unsuccessfully sought protection under section 93, this Court sitting in Nyeri stated: “ Before the appellant could seek protection as a purchaser under Section 93 of the Act she had first to prove that she is a purchaser. In this case, there was no prima facie evidence that she was a purchaser. In any case, and as provided by Section 82 (b) (II) of the Act, it would have been illegal for Beatrice Njeri Magondu to sell the land before the confirmation of the grant.” 58. To this end, it is evident on record that one James Kamau Githiomi (PW3) indeed filed an application dated the 25/1/2021 to be added as an interested party. However he abandoned the said application and testified as a witness of the objector. From the record, and the evidence given by the objector’s witnesses, it is evident that an agreement dated the 20/2/1985 was entered between the said James Kamau Githiomi and Humphrey who was acting under the authority of the deceased over a loan of Kshs. 150,000/= and the security thereof of the land was the subject matter of the suit herein as the money was needed for treatment of the deceased. The petitioner conceded that the deceased was unwell and was taken to Kenyatta National Hospital. She did not know where the money came from but heard the objector saying that the deceased consented to the sale of the land. 59. This court has perused keenly the agreement dated 20-2-1985 produced as exhibit JKG-1. The agreement though written by hand is admitted to be legitimate even by the petitioner. This court is satisfied based on the contents of the said agreement that James Kamau Githiomi (PW3) has the right to be considered as a purchaser because for one, the agreement was drawn when the deceased was alive and ailing. The deceased certainly required urgent resources to seek medical attention. The fact that she died within the same year in August 1985, demonstrated the urgency with which the transaction appears to have been made. 60. It is Clear from the evidence tendered that the deceased’s family failed to refund the purchaser Kshs.150,000/- and instead continued selling more land to the purchaser. Going from the provisions of the law to wit sections 55(1) and 82(b) of Law of Succession Act, it is obvious that the subsequent dealings on the estate were not protected by law. The only transaction protected by law was the transaction of Kshs.150,000/-. 61. The above provisions are clear that a limited grant is typically issued in response to urgent matters concerning the estate that cannot await the issuance of a full grant through the usual process. It is granted without prejudice to the rights of any other person to apply for a full grant of representation. Consequently, a limited grant is not subject to the same strict compliance requirements as a full grant of representation. Furthermore, the holder of the limited grant undertakes to administer the estate in accordance with the law, but only within the specific purpose for which the grant was issued, until the court issues a further grant of representation. 62. The objector herein had no legal capacity or authority to enter into further transactions with the said purchaser after the demise of the deceased in 1985. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 8

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63. It is therefore my considered view that the agreements entered into by Matata Arap Chepkoy on the 26/1/2008 between himself and James Kamau Githiomi for the sale of parcel of land known as Plot No. 49 Maridadi Settlement Scheme measuring approximately 5 acres which also forms the entire subject matter of the suit and further agreements for payment thereto were a nullity and a breach of Section 55 and 82 of the Law of Succession Act. 64. This court respectfully notes the case of Re Estate of M’Ajogi M’Ikiugu (Deceased) [2017] eKLR where the court, (F. Gikonyo J) stated as follows: “ Courts have said time and again- and I will not be tired of stating it again- that, under section 82(b) (ii) of the law of Succession Act, sale of immovable property of the estate before confirmation of grant is prohibited. Again, under section 55 of the Law of Succession Act, the law has placed restriction on distribution of any capital assets of the estate before confirmation of grant. Therefore, no person shall have any power or legal authority or capacity to sell immovable property of the deceased before confirmation of grant. As such, any such attempted sale of immovable property of the estate before confirmation of grant shall be null and void for all purposes and intents. I need not also state that beneficial interest of a person beneficially entitled to a share in the estate must be identified and be capable of registration in his name before it could be sold or pledged as security or exchanged with another type of property.” 65. The agreements dated 26-11-2008, 17-2-2009. 17-2-2009 and 30-12-2009 exhibited by the purchaser with respect to the estate are all nullities in law and cannot be enforced. The only redress available to the purchaser is to ask to be refunded his money by the objector. 66. The Court also finds that there exists a liability in so far as Section 86 of the Law of Succession Act is concerned to the tune of Kshs. 150,000/=. 67. A significant consideration in this matrix is the principle articulated in In Re Estate of Barrack Deya Okul (Deceased) [2018] eKLR, where the court held that: “ My clear understanding of this requirement is that once a Petitioner is notified of the existence of a liability (debt) by a creditor or once the Petitioner comes to learn of an existing proven liability (debt) owed by the estate, it is mandatory to include such a liability or debt as required above A decree against a deceased person, in the absence of a variation, setting aside or otherwise being stayed is in my view a proven liability against the estate of the deceased. It must be included in the list of liabilities in form 5 alluded to above. Such a debt shall, as provided for in Section 86 of the Law of Succession Act, be paid before any legacy.” 68. This court finds that in light of the validity of the first agreement dated 20-2-1985, the purchaser is entitled to one acre of the estate which should be equivalent to the amount he advanced the deceased for treatment. The one acre given is in accordance with Section 86 of Law of Succession Act. 69. Having found that the purchaser is entitled to 1 acre, the final issue for determination is fairly simple which is the distribution of the remaining 4 acres. The objector will be given 2 acres while the petitioner will get the remainder of 2 acres. The objector is however at liberty to negotiate with the purchaser over his entitlement to refund the amount paid to him by the purchaser. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 9

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I will make no order as to costs so each party to meet own costs. DELIVERED, DATED and SIGNED at KITALE this ……20th .… day of ………………JULY………. ……………., 2026. HON JUSTICE R.K. LIMO KITALE HIGH COURT Judgment delivered in open court In the presence of Risper Arunga for the objector M/s Keya for the petitioner Duke/Chemosop- court assistants JUDGMENT-KTL NO.226/2014 HC SUCC.CAUSE PAGE 0 OF 22 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10902/eng@2026-07-20 10

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