JUDGEMENT
1. This is a judgment in respect of the Appellant’s appeal dated 31st December 2021. It is in respect to the Ruling rendered by Honourable B. Ekhubi, Senior Principal Magistrate . It was delivered on 2nd December 2021 at the Thika Law Courts in T hika Succession Cause No. 200 of 2015 .
Background Facts
2. The Appellant, being aggrieved by the ruling, lodged an appeal to this Court.
3. The Memorandum of Appeal sets out the following grounds of appeal:
(1) THAT the Learned Magistrate erred in law and in fact in by failing to appreciate that the hallmark of the application was not land ownership dispute but mere enforcement of an already given/issued court order.
(2) THAT the Learned Magistrate misdirected himself in finding that he lacked jurisdiction to entertain the application 23rd July 2021.
(3) THAT the Learned Magistrate misdirected himself by failing to appreciate that he was rightly within his powers to ensure that the letter and spirit of the confirmed grant dated 29th September 2017 was fully actualized.
(4) THAT this Honourable court be pleased to fully allow the said application with costs.
4. This Court has carefully considered the ruling of the Honourable B. Ekhubi, Senior Principal Magistrate , delivered on 2nd December 2021 at the Thika Law Courts in Succession Cause No. 200 of 2015 .
5. The Trial Magistrate found that it was evident there existed a dispute over ownership of the suit property between Arthur Macharia and Regina Wangu Thamaine , both of whom claimed to have purchased the property from the administratrix, Hanna Njeri Kamau . The Trial Magistrate then proceeded to consider the ensuing question—whether the court was clothed with the requisite jurisdiction to determine the issue of ownership.
6. The Trial Court held that the primary duty of a probate court is to oversee the transmission of the estate of a deceased person to the rightful beneficiaries. Its jurisdiction is limited to the net estate of the deceased—that is, the portion of the estate that the deceased was free to dispose of. The purpose of such jurisdiction is to ascertain the assets and liabilities of the estate (if any), identify the beneficiaries, and determine the mode of distribution. In reaching this conclusion, the Learned Magistrate relied on the decision in Muriuki Musa Hassan v Rose Kanyua Musa & 4 others [2015] KEHC 5792 (KLR) . Further reliance was placed on Alexander Mbaka v Royford Muriuki Rauni & 7 others [2016] KEHC 3224 (KLR) .
7. The Trial Court found that it is only where one has established a claim against an already established estate that such a claim can be litigated before the Family Court. The claim must be conversant with, and constitute, a liability to the estate. In the Learned Magistrate’s view, the Court could not be called upon to ascertain whether or not one has a right to an estate of the deceased, where such a right has not yet crystalized. Only once the right has crystalized can the Family Court entertain it.
8. The Trial Court concluded that the claims made by the Applicants in both applications were ill-suited for determination within probate proceedings. The Court held that such claims ought to be litigated in separate and appropriate proceedings.
9. In the Chamber Summons dated 23rd January, 2021 filed under a Certificate of Urgency, the Applicant Arthur Macharia sought the following orders;
1) This this (sic) Honourable Court be pleased to order the Respondent to execute the transfer forms and all other relevant documents and instruments to effect and facilitate the transfer of the applicant’s share as per the certificate of confirmation of grant dated 22nd September, 2017.
2) Alternatively. This Honourable Court be pleased to order the Executive Officer to sign the said transfer forms and all other relevant documents and instruments on behalf of the Respondent so as to effect /or facilitate the transfer of the applicant’s share comprised in the estate of the deceased in terms of the certificate of confirmation of grant dated 22nd September, 2017.
3) Costs.
10. The second Application is by way of a Summons for Rectification of A Grant dated 8th September, 2021. It is filed by Regina Wangu Thumaine . The same was not attached to the Records of Appeal herein. It is to be presumed that the Applicant was not dissatisfied with the order that dismissed the application. For the completeness of the record, the Court has perused the original file from the Trial Court. It notes that the Summons sought the following orders;
1) THAT an inhibition be registered on T ITLE NUMBER KIAMBU/MUNYU/1377 measuring 0.4047 Ha.
2) THAT the grant of letter of administration issued to the said HANA NJERI KAMAU on 1st July 2016 confirmed on 22nd September, 2017 be rectified in the following respects as provided by Rule 43(1) of the Probate and Administration Rules:
(i) The name of one of the beneficiaries named in the Certificate of Confirmation of Grant being ARTHUR MAIGWA MACHARIA be and is hereby rectified by striking it out of the Certificate of Confirmation of Grant.
(ii) The property of the deceased’s estate being TITLE NUMBER KIAMBU/MUNYU/1377 measuring 0.4047 HA listed as belonging to both ARTHUR MAIGWA MACHARIA and REGINA WANGU THAMAINE in equal share in the Certificate of Confirmation of Grant be and is hereby rectified to read as belonging to REGINA WANGU THAMAINE .
11. Accordingly, and for the reasons set out by the Learned Magistrate, the applications dated 23rd July 2021 and 8th September 2021 were both dismissed, with no orders as to costs.
12. It is this Ruling that has triggered this Appeal.
13. Directions were issued by this Honourable Court that the Appeal be disposed of by way of written submissions.
14. The Respondents did not file any written submissions in response to the appeal.
Appellant’s Submissions
15. The Appellant urged the Court to note, from the outset, that the matter strictly entailed the enforcement of valid Court orders. This was the confirmed grant dated 22nd September 2021. which had been issued by Honourable B.N. Ireri (PM) .
16. In essence, the matter was not a dispute over land ownership, as portrayed by the Trial Court, but rather a straightforward application in which the Appellant sought enforcement of the confirmed grant dated 22nd September 2017. The said Grant clearly indicated that the Appellant and the 2nd respondent were to share equally a 0.4047-hectare (one-acre) parcel of land, to be excised from land parcel No. Kiambu/Munyu/1377.
17. It was the Appellant’s submission that, in most instances, confirmed grants are issued by consent of all parties, except in cases involving contested succession causes—which was not the case in the present matter.
18. It was submitted that the Grant dated 22nd September 2017 arose from the consent of all the parties involved. Furthermore, no party had raised, nor has ever raised, any objection to the mode of distribution set out in the confirmed grant through the legally available channels.
19. It was the Appellant’s submission that the matter had nothing to do with any prior arrangements between the Appellant and the 2nd Respondent before the confirmation of the Grant. Rather, it strictly concerned the enforcement and/or execution of the valid confirmed Grant issued on 22nd September 2017.
20. In support of this position, the Appellant placed reliance on the decision in Republic v Cabinet Secretary, Ministry of Education & Another ex parte Thadayo Obanda [2018] eKLR .
21. The Appellant contended that, although there was no necessity to delve into the events leading up to the issuance of the order dated 22nd September 2017—since the record clearly sets them out—a brief consideration of those events would nonetheless lead to the same conclusion. That valid Court orders, such as the one issued on 22nd September 2017, must be obeyed unless and until they are set aside through a legitimate judicial process.
22. The Appellant urged the Court to briefly consider the facts leading up to the confirmation of the grant dated 22nd September 2017. According to the Appellant's evidence, by a joint agreement dated 19th February 2010, he and the interested party jointly purchased one acre of land to be excised from parcel number Kiambu/Munyu/1377 at a consideration of Kshs. 500,000. Clause 5 of the agreement (marked as AMM1) expressly states that all parties thereto entered into the agreement voluntarily. At no point has the agreement been challenged, varied, or set aside on grounds of unconscionability, undue influence, or duress.
23. Further, the document marked AMM3—an acknowledgment of payment by the 1st respondent—clearly affirms the Appellant’s beneficial interest in the subject property. The Appellant also submitted that he had registered his frustration with the conduct of the 1st Respondent, who, in alleged collusion with the 2nd Respondent, appeared to be intent on depriving him of what he was lawfully entitled to under the confirmed Grant.
24. The Appellant submitted that Courts of law do not re-write contracts voluntarily entered into by parties; rather, the role of the Court was to enforce the terms of such agreements. It was the Appellant’s position that if there had been any duress, undue influence, or ill will during the execution of the agreement—as alleged by the 2nd Respondent—it would not have taken the 2nd Respondent twelve years to challenge or seek to rectify the agreement. In support of this position, the Appellant relied on the decision in Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] KECA 319 (KLR) , where the Court affirmed that, absent proof of fraud, duress, unconscionable terms, unfairness, or oppression, a voluntarily executed agreement must be upheld.
25. The Appellant further submitted that the Grant was confirmed in the presence of all parties involved, and no party has sought its revocation. In opposition, the 2nd Respondent alleged (before the Trial Court) that she was the sole purchaser of the land, claiming to have paid the purchase price to one Muriithi Kamau Munyu, who allegedly received the funds on behalf of the Respondent. It was, however, significant to note that the agreement clearly provides that a down payment of Kshs. 375,000 was made to the vendor, who acknowledged receipt of the said amount.
26. The Appellant further contended that the balance of the purchase price was to be paid upon confirmation of the Grant. The agreement makes no mention that payment was to be made to Samuel Muriithi Kamau. Consequently, the 2nd Respondent’s allegation clearly contradicts the express terms of the agreement.
27. The Appellant further urged the Court to note that the 2nd Respondent alleged that the Appellant did not contribute financially towards the purchase of the subject land and was therefore not a legal owner. The 2nd Respondent annexed bank statements in support of her claim. However, the Appellant clearly refuted this assertion in the Further Affidavit sworn on 24th September 2021, stating that the 2nd Respondent failed to account for the disposition of funds following the withdrawals.
28. The Appellant further submitted that, even if the Court were to entertain the 2nd Respondent’s position, several pertinent questions would remain unanswered. For example, why does the agreement reflect two purchasers? Why does the acknowledgement note (AMM3) clearly show the Appellant making payments? Why did it take nearly twelve years for the Interested Party to allege sole ownership? And why would the Interested Party agree to have the Grant confirmed as it stands? These facts are not coincidental but rather constitute clear evidence of the Appellant’s interest in the disputed land. Consequently, the order dated 22nd September 2017 must be enforced strictly as issued. In support, reliance was placed on the decision in Lawrence Kimani Nyanjui & Margaret Mungai Nyanjui v Njau Nyanjui Thitu & Joel Mungai Nyanjui [2012] KEHC 5652 (KLR) , where similar orders were sought and upheld.
29. Regarding costs, the Appellant submitted that the conduct of the Respondents has resulted in significant financial losses. This application could have been avoided had the 1st Respondent acted honourably by signing the transfer forms as required. Instead, the 1st Respondent, allegedly in collusion with the 2nd Respondent, has obstructed the enforcement of valid Court orders. Court orders are not made in vain, and the only effective way to ensure compliance was through an award of costs. Accordingly, the Appellant prayed that this Appeal be allowed in its entirety, as set out in the Memorandum of Appeal dated 31st December 2021.
Issues For Determination
30. The Court has considered the pleadings, the submissions, and the Record of Appeal, and finds that a single issue arises for determination before this Honourable Court: -
(i) Whether the Trial Court had jurisdiction to entertain the suit.
Analysis.
31. As the first Appellate Court, this Court is duty-bound to re-evaluate and re-analyse the evidence adduced before the Subordinate Court, as well as the findings and judgment thereof. It thereafter has to arrive at its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses first-hand. So, for example the Appellate Court would not have had the benefit of observing the demeanour of the witnesses and a leeway should be given to the observations made by the Trial Court in that regard.
32. In Mursal & Another v Manese (suing as the legal administrator of the estate of Daphine Kanini Manesa) [2021] KEHC 282 (KLR); Civil Appeal No. E020 of 2021, Mativo J (as he then was) observed as follows: –
“A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses fast hand. This duty was stated in Selle & Another versus Associated Motor Boat Co. Ltd & Others (1968) EA 123 and in Peters versus Sunday Post Limited (1958) EA 424.”
33. A similar position was adopted by this Court in NABK v JSZ [2023] KEHC 20466 (KLR); Family Appeal No. 32 of 2022 (Judgment delivered on 12 July 2023) .
(i) Whether the Trial Court Had Jurisdiction to Entertain the Suit .
34. The Court has no authority to rewrite the contract between the parties. In National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows:
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
35. In Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR) the Court of Appeal further stated that:
“We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.”
36. Accordingly, the probate court below properly confirmed the grant to include the names of the Appellant and the 2nd Respondent, in line with the terms of the sale agreement. A perusal of the said agreement reveals that the parties named therein expressly intended the property to be registered in both their names.
37. It is further evident from the sale agreement that as no specific shares were indicated in the sale agreement each party was to hold an undivided interest in the entire property. This denotes that both parties would jointly and concurrently own the property, with neither entitled to a specific, physically demarcated portion thereof. It follows that the parties were to hold the property as co-owners. Consequently, no single party can claim an exclusive or identifiable portion of the property.
38. In that regard, the Appellant's assertion that the property ought to have been divided equally, and conversely the 2nd Respondent's contention that the Appellant made no contribution to the purchase and therefore the confirmation should have been in her name alone, are both untenable. As already established, neither party can lay claim to a distinct physical share of the property. Thus, the Probate Court cannot be faulted for confirming the grant in the manner that it did. In any event this was done with full concurrence of the parties now battling it out.
39. Having confirmed the property in accordance with the names appearing in the sale agreement, any dispute concerning ownership or respective interests between the Appellant and the 2nd Respondent was no longer within the purview of the Probate Court.
40. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (Application No. 2 of 2011) [2012] KESC 8 (KLR) stated as follows:
“A Court’s jurisdiction flows 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 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.”
41. The Learned Magistrate rightly held that the Court lacked jurisdiction to adjudicate such ownership disputes, which fall outside the scope of succession proceedings.
42. It is also apparent that the property was acquired in the joint names of the parties during the subsistence of their marriage. The Record of Appeal reflects that the Appellant even chastised the 1st Respondent for allegedly interfering in the marital relationship between himself and the 2nd Respondent. In light of this, the property may properly be presumed to constitute matrimonial property. Consequently, any party seeking a determination of proprietary rights in respect of the said property—which was to be registered in both their names—ought to institute appropriate proceedings by way of an Originating Summons under the Matrimonial Property Act.
43. In LWK v SKG (Matrimonial Cause E003 of 2021) [2024] KEHC 11212 (KLR) (Judgment delivered on 26 September 2024) , the Court observed that the question of whether a property constitutes matrimonial property, and the extent of each spouse’s contribution towards its acquisition, are issues of fact that must be established through evidence. A fair and equitable distribution of matrimonial property must therefore be guided by Article 45(3) of the Constitution of Kenya, 2010 and the provisions of the Matrimonial Property Act, 2013.
44. Consequently, a Court seized with the determination of such issues must operate within the legal framework prescribed under the Matrimonial Property Act, including determining whether the property is matrimonial, the respective contributions of each spouse, and the appropriate apportionment thereof.
45. The Court is further guided by Section 6(1)(c) of the Matrimonial Property Act, 2013 , which defines matrimonial property to include any other immovable and movable property that is jointly owned and acquired during the subsistence of the marriage.
46. In addition, Section 7 of the Matrimonial Property Act, 2013 provides that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and that such property shall be divided between the spouses upon divorce or dissolution of the marriage.
47. The Appellant submits quite forcefully and persuasively that this is not a dispute about property but one of enforcement. However, as the Court has endeavoured to show above, this has now morphed into a property dispute. The Probate Court should not be seen to wade into or encourage the parties to convolute or forment their dispute. Even if the Court was to grant the prayers sought, it would not resolve the problems between the parties. It would indeed confound and prolong them. The property dispute as to who owns the property, the shares thereof if any and whether it is matrimonial property would persist.
48. Once the parties resolve this ownership dispute, nothing will be easier than to approach this Court for enforcement of such a resolution by consent or determination by a Court of competent jurisdiction. In the meantime, the Court notes that the share is noted by the Probate Court as shared equally between the A RTHUR MAIGWA MACHARIA and REGINA WANGU THAMANE . What the parties were seeking was to have the Probate Court severe this shared ownership. This is what the Leaned Magistrate correctly in our view declined to do. This Court is not convinced that can severe this ownership as proposed by the Appellant.
49. Accordingly, the Learned Magistrate was correct in holding that the Court lacked jurisdiction to determine the dispute. This is because such a determination would inevitably involve questions of ownership and apportionment of matrimonial property. All these are matters which fall outside the scope of succession proceedings and are properly within the jurisdiction of a Court exercising authority under the Matrimonial Property Act, 2013.
50. As to costs, the Respondents did not take any part in the hearing of this Appeal. In any event costs are at the discretion of this Court. This being a family matter and between spouses, there will be no orders as to costs.
Determination
51. The Appeal is dismissed in its entirety as lacking in merits.
52. There be no orders as to costs.
53. Orders accordingly.
DELIVERED, DATED, AND SIGNED THIS 31ST DAY OF JULY, 2025 AT THIKA.
NJOROGE, BENJAMIN K.
JUDGE
In the presence of: -
Mr. Gichuki for the Appellant.
N/A for the 1st Respondent.
N/A for the 2nd Respondent.
Court Assistant: Mr. Amos
1. This is a judgment in respect of the Appellant’s appeal dated 31st December 2021. It is in respect to the Ruling rendered by Honourable B. Ekhubi, Senior Principal Magistrate . It was delivered on 2nd December 2021 at the Thika Law Courts in T hika Succession Cause No. 200 of 2015 .
Background Facts
2. The Appellant, being aggrieved by the ruling, lodged an appeal to this Court.
3. The Memorandum of Appeal sets out the following grounds of appeal:
(1) THAT the Learned Magistrate erred in law and in fact in by failing to appreciate that the hallmark of the application was not land ownership dispute but mere enforcement of an already given/issued court order.
(2) THAT the Learned Magistrate misdirected himself in finding that he lacked jurisdiction to entertain the application 23rd July 2021.
(3) THAT the Learned Magistrate misdirected himself by failing to appreciate that he was rightly within his powers to ensure that the letter and spirit of the confirmed grant dated 29th September 2017 was fully actualized.
(4) THAT this Honourable court be pleased to fully allow the said application with costs.
4. This Court has carefully considered the ruling of the Honourable B. Ekhubi, Senior Principal Magistrate , delivered on 2nd December 2021 at the Thika Law Courts in Succession Cause No. 200 of 2015 .
5. The Trial Magistrate found that it was evident there existed a dispute over ownership of the suit property between Arthur Macharia and Regina Wangu Thamaine , both of whom claimed to have purchased the property from the administratrix, Hanna Njeri Kamau . The Trial Magistrate then proceeded to consider the ensuing question—whether the court was clothed with the requisite jurisdiction to determine the issue of ownership.
6. The Trial Court held that the primary duty of a probate court is to oversee the transmission of the estate of a deceased person to the rightful beneficiaries. Its jurisdiction is limited to the net estate of the deceased—that is, the portion of the estate that the deceased was free to dispose of. The purpose of such jurisdiction is to ascertain the assets and liabilities of the estate (if any), identify the beneficiaries, and determine the mode of distribution. In reaching this conclusion, the Learned Magistrate relied on the decision in Muriuki Musa Hassan v Rose Kanyua Musa & 4 others [2015] KEHC 5792 (KLR) . Further reliance was placed on Alexander Mbaka v Royford Muriuki Rauni & 7 others [2016] KEHC 3224 (KLR) .
7. The Trial Court found that it is only where one has established a claim against an already established estate that such a claim can be litigated before the Family Court. The claim must be conversant with, and constitute, a liability to the estate. In the Learned Magistrate’s view, the Court could not be called upon to ascertain whether or not one has a right to an estate of the deceased, where such a right has not yet crystalized. Only once the right has crystalized can the Family Court entertain it.
8. The Trial Court concluded that the claims made by the Applicants in both applications were ill-suited for determination within probate proceedings. The Court held that such claims ought to be litigated in separate and appropriate proceedings.
9. In the Chamber Summons dated 23rd January, 2021 filed under a Certificate of Urgency, the Applicant Arthur Macharia sought the following orders;
1) This this (sic) Honourable Court be pleased to order the Respondent to execute the transfer forms and all other relevant documents and instruments to effect and facilitate the transfer of the applicant’s share as per the certificate of confirmation of grant dated 22nd September, 2017.
2) Alternatively. This Honourable Court be pleased to order the Executive Officer to sign the said transfer forms and all other relevant documents and instruments on behalf of the Respondent so as to effect /or facilitate the transfer of the applicant’s share comprised in the estate of the deceased in terms of the certificate of confirmation of grant dated 22nd September, 2017.
3) Costs.
10. The second Application is by way of a Summons for Rectification of A Grant dated 8th September, 2021. It is filed by Regina Wangu Thumaine . The same was not attached to the Records of Appeal herein. It is to be presumed that the Applicant was not dissatisfied with the order that dismissed the application. For the completeness of the record, the Court has perused the original file from the Trial Court. It notes that the Summons sought the following orders;
1) THAT an inhibition be registered on T ITLE NUMBER KIAMBU/MUNYU/1377 measuring 0.4047 Ha.
2) THAT the grant of letter of administration issued to the said HANA NJERI KAMAU on 1st July 2016 confirmed on 22nd September, 2017 be rectified in the following respects as provided by Rule 43(1) of the Probate and Administration Rules:
(i) The name of one of the beneficiaries named in the Certificate of Confirmation of Grant being ARTHUR MAIGWA MACHARIA be and is hereby rectified by striking it out of the Certificate of Confirmation of Grant.
(ii) The property of the deceased’s estate being TITLE NUMBER KIAMBU/MUNYU/1377 measuring 0.4047 HA listed as belonging to both ARTHUR MAIGWA MACHARIA and REGINA WANGU THAMAINE in equal share in the Certificate of Confirmation of Grant be and is hereby rectified to read as belonging to REGINA WANGU THAMAINE .
11. Accordingly, and for the reasons set out by the Learned Magistrate, the applications dated 23rd July 2021 and 8th September 2021 were both dismissed, with no orders as to costs.
12. It is this Ruling that has triggered this Appeal.
13. Directions were issued by this Honourable Court that the Appeal be disposed of by way of written submissions.
14. The Respondents did not file any written submissions in response to the appeal.
Appellant’s Submissions
15. The Appellant urged the Court to note, from the outset, that the matter strictly entailed the enforcement of valid Court orders. This was the confirmed grant dated 22nd September 2021. which had been issued by Honourable B.N. Ireri (PM) .
16. In essence, the matter was not a dispute over land ownership, as portrayed by the Trial Court, but rather a straightforward application in which the Appellant sought enforcement of the confirmed grant dated 22nd September 2017. The said Grant clearly indicated that the Appellant and the 2nd respondent were to share equally a 0.4047-hectare (one-acre) parcel of land, to be excised from land parcel No. Kiambu/Munyu/1377.
17. It was the Appellant’s submission that, in most instances, confirmed grants are issued by consent of all parties, except in cases involving contested succession causes—which was not the case in the present matter.
18. It was submitted that the Grant dated 22nd September 2017 arose from the consent of all the parties involved. Furthermore, no party had raised, nor has ever raised, any objection to the mode of distribution set out in the confirmed grant through the legally available channels.
19. It was the Appellant’s submission that the matter had nothing to do with any prior arrangements between the Appellant and the 2nd Respondent before the confirmation of the Grant. Rather, it strictly concerned the enforcement and/or execution of the valid confirmed Grant issued on 22nd September 2017.
20. In support of this position, the Appellant placed reliance on the decision in Republic v Cabinet Secretary, Ministry of Education & Another ex parte Thadayo Obanda [2018] eKLR .
21. The Appellant contended that, although there was no necessity to delve into the events leading up to the issuance of the order dated 22nd September 2017—since the record clearly sets them out—a brief consideration of those events would nonetheless lead to the same conclusion. That valid Court orders, such as the one issued on 22nd September 2017, must be obeyed unless and until they are set aside through a legitimate judicial process.
22. The Appellant urged the Court to briefly consider the facts leading up to the confirmation of the grant dated 22nd September 2017. According to the Appellant's evidence, by a joint agreement dated 19th February 2010, he and the interested party jointly purchased one acre of land to be excised from parcel number Kiambu/Munyu/1377 at a consideration of Kshs. 500,000. Clause 5 of the agreement (marked as AMM1) expressly states that all parties thereto entered into the agreement voluntarily. At no point has the agreement been challenged, varied, or set aside on grounds of unconscionability, undue influence, or duress.
23. Further, the document marked AMM3—an acknowledgment of payment by the 1st respondent—clearly affirms the Appellant’s beneficial interest in the subject property. The Appellant also submitted that he had registered his frustration with the conduct of the 1st Respondent, who, in alleged collusion with the 2nd Respondent, appeared to be intent on depriving him of what he was lawfully entitled to under the confirmed Grant.
24. The Appellant submitted that Courts of law do not re-write contracts voluntarily entered into by parties; rather, the role of the Court was to enforce the terms of such agreements. It was the Appellant’s position that if there had been any duress, undue influence, or ill will during the execution of the agreement—as alleged by the 2nd Respondent—it would not have taken the 2nd Respondent twelve years to challenge or seek to rectify the agreement. In support of this position, the Appellant relied on the decision in Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] KECA 319 (KLR) , where the Court affirmed that, absent proof of fraud, duress, unconscionable terms, unfairness, or oppression, a voluntarily executed agreement must be upheld.
25. The Appellant further submitted that the Grant was confirmed in the presence of all parties involved, and no party has sought its revocation. In opposition, the 2nd Respondent alleged (before the Trial Court) that she was the sole purchaser of the land, claiming to have paid the purchase price to one Muriithi Kamau Munyu, who allegedly received the funds on behalf of the Respondent. It was, however, significant to note that the agreement clearly provides that a down payment of Kshs. 375,000 was made to the vendor, who acknowledged receipt of the said amount.
26. The Appellant further contended that the balance of the purchase price was to be paid upon confirmation of the Grant. The agreement makes no mention that payment was to be made to Samuel Muriithi Kamau. Consequently, the 2nd Respondent’s allegation clearly contradicts the express terms of the agreement.
27. The Appellant further urged the Court to note that the 2nd Respondent alleged that the Appellant did not contribute financially towards the purchase of the subject land and was therefore not a legal owner. The 2nd Respondent annexed bank statements in support of her claim. However, the Appellant clearly refuted this assertion in the Further Affidavit sworn on 24th September 2021, stating that the 2nd Respondent failed to account for the disposition of funds following the withdrawals.
28. The Appellant further submitted that, even if the Court were to entertain the 2nd Respondent’s position, several pertinent questions would remain unanswered. For example, why does the agreement reflect two purchasers? Why does the acknowledgement note (AMM3) clearly show the Appellant making payments? Why did it take nearly twelve years for the Interested Party to allege sole ownership? And why would the Interested Party agree to have the Grant confirmed as it stands? These facts are not coincidental but rather constitute clear evidence of the Appellant’s interest in the disputed land. Consequently, the order dated 22nd September 2017 must be enforced strictly as issued. In support, reliance was placed on the decision in Lawrence Kimani Nyanjui & Margaret Mungai Nyanjui v Njau Nyanjui Thitu & Joel Mungai Nyanjui [2012] KEHC 5652 (KLR) , where similar orders were sought and upheld.
29. Regarding costs, the Appellant submitted that the conduct of the Respondents has resulted in significant financial losses. This application could have been avoided had the 1st Respondent acted honourably by signing the transfer forms as required. Instead, the 1st Respondent, allegedly in collusion with the 2nd Respondent, has obstructed the enforcement of valid Court orders. Court orders are not made in vain, and the only effective way to ensure compliance was through an award of costs. Accordingly, the Appellant prayed that this Appeal be allowed in its entirety, as set out in the Memorandum of Appeal dated 31st December 2021.
Issues For Determination
30. The Court has considered the pleadings, the submissions, and the Record of Appeal, and finds that a single issue arises for determination before this Honourable Court: -
(i) Whether the Trial Court had jurisdiction to entertain the suit.
Analysis.
31. As the first Appellate Court, this Court is duty-bound to re-evaluate and re-analyse the evidence adduced before the Subordinate Court, as well as the findings and judgment thereof. It thereafter has to arrive at its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses first-hand. So, for example the Appellate Court would not have had the benefit of observing the demeanour of the witnesses and a leeway should be given to the observations made by the Trial Court in that regard.
32. In Mursal & Another v Manese (suing as the legal administrator of the estate of Daphine Kanini Manesa) [2021] KEHC 282 (KLR); Civil Appeal No. E020 of 2021, Mativo J (as he then was) observed as follows: –
“A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses fast hand. This duty was stated in Selle & Another versus Associated Motor Boat Co. Ltd & Others (1968) EA 123 and in Peters versus Sunday Post Limited (1958) EA 424.”
33. A similar position was adopted by this Court in NABK v JSZ [2023] KEHC 20466 (KLR); Family Appeal No. 32 of 2022 (Judgment delivered on 12 July 2023) .
(i) Whether the Trial Court Had Jurisdiction to Entertain the Suit .
34. The Court has no authority to rewrite the contract between the parties. In National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows:
“A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
35. In Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR) the Court of Appeal further stated that:
“We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.”
36. Accordingly, the probate court below properly confirmed the grant to include the names of the Appellant and the 2nd Respondent, in line with the terms of the sale agreement. A perusal of the said agreement reveals that the parties named therein expressly intended the property to be registered in both their names.
37. It is further evident from the sale agreement that as no specific shares were indicated in the sale agreement each party was to hold an undivided interest in the entire property. This denotes that both parties would jointly and concurrently own the property, with neither entitled to a specific, physically demarcated portion thereof. It follows that the parties were to hold the property as co-owners. Consequently, no single party can claim an exclusive or identifiable portion of the property.
38. In that regard, the Appellant's assertion that the property ought to have been divided equally, and conversely the 2nd Respondent's contention that the Appellant made no contribution to the purchase and therefore the confirmation should have been in her name alone, are both untenable. As already established, neither party can lay claim to a distinct physical share of the property. Thus, the Probate Court cannot be faulted for confirming the grant in the manner that it did. In any event this was done with full concurrence of the parties now battling it out.
39. Having confirmed the property in accordance with the names appearing in the sale agreement, any dispute concerning ownership or respective interests between the Appellant and the 2nd Respondent was no longer within the purview of the Probate Court.
40. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (Application No. 2 of 2011) [2012] KESC 8 (KLR) stated as follows:
“A Court’s jurisdiction flows 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 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.”
41. The Learned Magistrate rightly held that the Court lacked jurisdiction to adjudicate such ownership disputes, which fall outside the scope of succession proceedings.
42. It is also apparent that the property was acquired in the joint names of the parties during the subsistence of their marriage. The Record of Appeal reflects that the Appellant even chastised the 1st Respondent for allegedly interfering in the marital relationship between himself and the 2nd Respondent. In light of this, the property may properly be presumed to constitute matrimonial property. Consequently, any party seeking a determination of proprietary rights in respect of the said property—which was to be registered in both their names—ought to institute appropriate proceedings by way of an Originating Summons under the Matrimonial Property Act.
43. In LWK v SKG (Matrimonial Cause E003 of 2021) [2024] KEHC 11212 (KLR) (Judgment delivered on 26 September 2024) , the Court observed that the question of whether a property constitutes matrimonial property, and the extent of each spouse’s contribution towards its acquisition, are issues of fact that must be established through evidence. A fair and equitable distribution of matrimonial property must therefore be guided by Article 45(3) of the Constitution of Kenya, 2010 and the provisions of the Matrimonial Property Act, 2013.
44. Consequently, a Court seized with the determination of such issues must operate within the legal framework prescribed under the Matrimonial Property Act, including determining whether the property is matrimonial, the respective contributions of each spouse, and the appropriate apportionment thereof.
45. The Court is further guided by Section 6(1)(c) of the Matrimonial Property Act, 2013 , which defines matrimonial property to include any other immovable and movable property that is jointly owned and acquired during the subsistence of the marriage.
46. In addition, Section 7 of the Matrimonial Property Act, 2013 provides that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and that such property shall be divided between the spouses upon divorce or dissolution of the marriage.
47. The Appellant submits quite forcefully and persuasively that this is not a dispute about property but one of enforcement. However, as the Court has endeavoured to show above, this has now morphed into a property dispute. The Probate Court should not be seen to wade into or encourage the parties to convolute or forment their dispute. Even if the Court was to grant the prayers sought, it would not resolve the problems between the parties. It would indeed confound and prolong them. The property dispute as to who owns the property, the shares thereof if any and whether it is matrimonial property would persist.
48. Once the parties resolve this ownership dispute, nothing will be easier than to approach this Court for enforcement of such a resolution by consent or determination by a Court of competent jurisdiction. In the meantime, the Court notes that the share is noted by the Probate Court as shared equally between the A RTHUR MAIGWA MACHARIA and REGINA WANGU THAMANE . What the parties were seeking was to have the Probate Court severe this shared ownership. This is what the Leaned Magistrate correctly in our view declined to do. This Court is not convinced that can severe this ownership as proposed by the Appellant.
49. Accordingly, the Learned Magistrate was correct in holding that the Court lacked jurisdiction to determine the dispute. This is because such a determination would inevitably involve questions of ownership and apportionment of matrimonial property. All these are matters which fall outside the scope of succession proceedings and are properly within the jurisdiction of a Court exercising authority under the Matrimonial Property Act, 2013.
50. As to costs, the Respondents did not take any part in the hearing of this Appeal. In any event costs are at the discretion of this Court. This being a family matter and between spouses, there will be no orders as to costs.
Determination
51. The Appeal is dismissed in its entirety as lacking in merits.
52. There be no orders as to costs.
53. Orders accordingly.
DELIVERED, DATED, AND SIGNED THIS 31ST DAY OF JULY, 2025 AT THIKA.
NJOROGE, BENJAMIN K.
JUDGE
In the presence of: -
Mr. Gichuki for the Appellant.
N/A for the 1st Respondent.
N/A for the 2nd Respondent.
Court Assistant: Mr. Amos