Introduction
1. This appeal was filed by Paul Luseka Khasolo challenging the judgment of Hon. J.R. Ndururi (Senior Principal Magistrate) delivered on 16th July 2024 in Kakamega Chief Magistrates Court ELC Case No. 205 of 2022. In the impugned judgment, the learned trial Magistrate allowed the plaintiff’s claim upon making a finding that the plaintiff had proved his case that the defendant fraudulently obtained registration of parcel Nos. Idakho/Shiseso/2018 and 2017 which had been registered in the name of the plaintiff’s father the late Serebwa Mayenzero, through a forged confirmed grant. It is that decision that provoked the instant appeal.
Background
2. Vide a plaint dated 15th December 2022, the plaintiff, (the respondent in this appeal) stated that his late father Selebwa Mayenzelo (deceased) was the registered proprietor of land parcel No. Idakho/Shiseso/892 and that before his death, he had shared it between his two sons, namely; the plaintiff and the 2nd defendant Francis Akonya Silibwa. That the deceased had been blessed with three children being the plaintiff, the 2nd defendant and a daughter one Difina Mwituyi Siribwa. That the 1st defendant is not a son of the deceased and that he conspired with and took advantage of the mental incapacity and illiteracy of the 2nd defendant, forged a confirmed grant purporting that it had been issued in Kakamega HCC Succession Cause No. 18 of 2008, when the said Succession Cause was not in respect to the estate of the late Selebwa Mayenzelo.
3. The plaintiff sought the following orders;
a) An order for cancellation of the title deeds belonging to the 1st and 2nd defendants being land parcel numbers Idakho/Shiseso/2018 and 2017 respectively.
b) A declaration that the grant of letters of administration and the certificate of confirmation of the grant in the estate of Serebwa Mayenzero vide Succession Cause Number 18 of 2008 amounted to forgery and hence a nullity.
c) A permanent injunction restraining the 1st and 2nd defendants from interfering with the plaintiff’s use of his share of land before and after proper transfer of the suit land.
d) Costs and any other reliefs the court may deem fit to grant.
4. The 1st defendant filed defence dated 17th January 2023 denying the plaintiff’s claim and alleging to have been in open and uninterrupted possession of parcel No. Idakho/shiseso/982 since 2009 and that therefore the claim was time barred. He stated that there was a sale. The 1st defendant also contested the plaintiff’s capacity to file the suit. He sought the dismissal of the plaintiffs claim.
5. No defence was filed by the 2nd defendant
6. The matter proceeded to hearing by way of viva voce evidence.
7. Both the plaintiff and the 1st defendant presented three witnesses each.
Plaintiff’s evidence
8. In its totality, the plaintiff’s evidence was that the parcel No. Idakho/Shiseso/2018 and 2019 (being subdivisions of parcel No. Idakho/Shiseso/892 (suit property) belonged to his deceased father the late Selebwa Mayenzelo and that the defendants conspired and using a forged certificate of confirmation of grant purportedly issued in Kakamega HC Succession Cause No. 18 of 2008, got themselves registered as owners of parcel Nos 2018 and 2017. The plaintiff produced a certificate of confirmation dated 6th May 2009, in Kakamega HCC Succession Cause No. 18 of 2008 indicating that the deceased in that case was Serebwa Mayenzelo while the grant therein was issued to Francis Akonya Siribwa and Julius Lusenaka Khasolo. In the purported confirmed grant, parcel No. Idakho/Shiseso/892 is to be shared by Francis Akonya Siribwa and Julius Luseka Khasolo. He further produced a mutation application for partition, Transfer form RL 7, application for consent, letter of consent and search certificate in tandem with the confirmed grant The plaintiff also presented evidence to demonstrate the forgery in the form of a letter from the Deputy Registrar of the court showing that the parties in Kakamega Succession 18 of 2008 are different and that the deceased in that matter was not the plaintiff’s father. From the letter by the Deputy Registrar of the High Court at Kakamega dated 20th September 2020, it is clear that Kakamega HCC Succession Cause No. 18 of 2008 was in respect of the estate of the late James Omulama Abdsalom alias James Omulama Abdsalom and not the estate of the late Selebwa Mayenzelo.
1st Defendant’s evidence
9. The 1st defendant’s evidence was that the 2nd defendant sold him land on 16th May 2009, being a portion of his share from his inheritance from his late father. That the 2nd defendant is the one who undertook the succession process. That he knows that the plaintiff and 2nd defendants are brothers. That he got title in 2009 and that the plaintiff being aware decided to trespass on his land. That he filed ELC 33 of 2021. That he purchased another parcel of land for the plaintiff and 2nd defendant.
10. Upon consideration of the pleadings, evidence and submissions, the trial court found that the plaintiff had proved his case and allowed it as prayed in view of the evidence of forgery of grant from the letter issued by the Deputy Registrar High Court at Kakamega.
11. Aggrieved with the trial court decision, the appellant filed the instant appeal citing the following four grounds of appeal;
a) That the learned trial magistrate erred in law and fact in holding that the respondent had proved his case on a balance of probability
b) The learned trial magistrate erred in law and fact in holding that the respondent had the capacity to file the case and agitate for the right of a deceased person.
c) The learned trial magistrate erred in law and fact in holding that the case was not time barred.
d) The learned trial magistrate erred in law and fact in raising issues which were not before him
12. The appellant sought the following orders;
a) The appeal be allowed and judgment set aside
b) The costs of the appeal be provided for
13. The appeal was canvassed by way of written submissions. On record are submissions filed by the appellant dated 20th May 2025 and the respondent’s submissions dated 10th April 2025.
Appellant’s submissions.
14. Counsel for the appellant submitted that the respondent failed to prove his case on the required standard. It was argued for the appellant that since the respondent confirmed in evidence that the suit property belonged to his father, he lacked capacity to sue the appellant. Counsel contended that it was wrong for the trial court to declare the grant and proceedings of the Superior court as wrong because a Magistrates court has no jurisdiction to do so. Counsel relied on section 76 of the Law of Succession Act and submitted that a person challenging a grant must move the Succession Court for nullification of the same. Counsel further maintained that the 2nd respondent being the 1st respondent’s brother had similar rights as the 1st respondent.
15. Concerning limitation, counsel relied on section 7 of the Limitation of Actions Act and submitted that the suit in the lower court having been filed on 15th December 2022 when acts complained of were committed 13 years earlier, in 2009 meant that the suit was filed out of time. Counsel also referred the court to the cases of Daniel Njuguna Mbugua v Peter Kiarie Njuguna & Others ELC Case No. 7 of 2020 and Kipkemoi Arap Kober & Others v Manywele Korkoren & Another.
Respondent’s submissions
16. Counsel for the respondent submitted that the respondent proved his case that the transfer of the suit property to the appellant was fraudulent as the certificate of confirmed grant used by the appellant to obtain registration was a forgery. Counsel referred to the letter from the Deputy Registrar of the High Court at Kakamega dated 20th September 2022 which showed that Succession Cause No 18 of 2008 was in regard to the estate of the late James Omulama and not in respect of the respondent’s deceased father. Reliance was placed on section 26 of the Land Registration Act.
17. On the question of capacity, counsel argued that the same was not pleaded in defence and could not be raised on appeal. Reliance was placed on the cases of Wachira v Ndanjeru (1987) KLR 252 and West Kenya Sugar Co. Ltd v Okendo for the proposition that matters not canvassed by parties in the lower court should not be considered on appeal.
18. Concerning the argument that the suit was time barred, counsel argued that where fraud is pleaded, time runs from the time the fraud is discovered. They referred to the cases of George Stephen Njoroge Macharia v Issa Mjawiri Jabiri & 2 Others Kwale ELC Case No. 109 of 2021 and Mary Muthoni v Joseph Wachira Nderitu & Another. Counsel further submitted that the trial court considered the matters raised before it.
Analysis and determination.
19. The court has carefully considered the appeal, parties’ rival submissions and the entire record. This being a first appeal, the duty of this court is to re-evaluate, reanalyze and reassess the evidence before the trial court and make its own independent conclusions bearing in mind that it had no advantage of seeing or hearing witnesses and therefore make due allowance for that.
20. The duty of the first appellate court was discussed in the case of Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR, where the Court of Appeal stated as follows;
‘‘An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
21. Having considered the grounds of appeal raised in the Memorandum of Appeal, the same raises three issues for the court’s determination, namely;
a) Whether the 1st respondent had capacity to file suit being Kakamega CMC ELC CASE NO. 205 OF 2022.
b) Whether the claim filed by the 1st respondent was time barred; and
c) Whether the 1st respondent proved his claim against the appellant and 2nd respondent.
22. Before a court delves into the merits of a case, where capacity and limitation is raised, it ought to first address capacity, then limitation before dealing with the merits of the case.
23. Although the respondent argued that capacity was not an issue before the trial court as it had not been pleaded, having considered the 1st respondent’s defence dated 17th January 2023, it is clear that the plaintiff’s capacity was contested in paragraph 4 of the defence. In any case, the plaint is clear that the 1st respondent was suing the appellant and the 2nd respondent so as to protect property belonging to his late father in respect of whom a Succession cause had not been filed. In short, the 1st respondent’s suit was predicated on the appellant’s want of capacity, as it questioned the authenticity of the confirmed grant that formed the basis of the appellant’s registration as proprietor of the suit property. The 1st respondent apparently forgot that the sword of capacity is double edged. As he rightly argued that the appellant’s transfer of the suit property to himself ought to have been based on an authentic confirmed grant, he ought to have also borne in mind the fact that for him to litigate on behalf of and for the interest of his late father’s estate, he also required the relevant capacity of having grant of letters of administration.
24. Having considered the Judgment of the trial court, it is clear that in framing the issues for determination, the court did not identify the 1st respondent’s capacity as one of the issues to be determined. This is despite the same having been raised in the defence.
25. Section 82 (a) of the Law of Succession Act provides that it is a personal representative of the estate of a deceased person, who has in his or her possession grant of letters of administration who has power to enforce by suit or otherwise all causes of action that survive the deceased or arise out of his death. Therefore, to file suit for the benefit of the estate of a deceased person, the claimant must be in possession of grant of letters of administration. The 1st respondent did not contest the fact that he had not obtained grant of letters of administration for the estate of Serebwa Mayenzero, this is despite the fact that at the time of institution of suit, he had legal representation. In the premises, I hereby find that the 1st respondent not being the personal representative of the estate of the late Serebwa Mayenzelo, had no capacity to file Kakamega CM ELC CASE NO. 205 OF 2024. That being the case, the trial court was wrong in bypassing the question of the 1st respondent’s capacity and proceeding to determine the merits of the suit.
26. As the 1st respondent had no capacity to file suit for the benefit of the estate of the late Serebwa Mayenzelo, the plaint dated 16th December 2022 was fatally incompetent and its fate one; to be struck out. Since the 1st respondent had no capacity to sue, the questions of limitation and the merits of the claim, become moot, and this court will not interrogate them.
27. On costs, section 27 of the Civil Procedure Act provides that costs are awarded at the court’s discretion and they follow the event, unless for reasons to be stated by court.
28. In the matter before me, it is not lost on this court that although the 1st respondent lacked capacity to sue, it was clear that the registration of the appellant’s title was based on a “confirmed grant” which the Deputy Registrar of the High court confirmed, without any rebuttal from the appellant, that it was non-existent. Therefore, the appellant will not be allowed to reap costs from a situation of apparent deceit.
29. Besides, questions of capacity and limitation ought to be raised at the preliminary stage before the matter is listed for hearing, so as not to waste precious judicial time in the event the court upholds the same. In this case, the respondent failed to raise the two issues at the preliminary stage and instead went the whole hog and had half a dozen witnesses presenting evidence regarding the merits of the case. Thus, he failed to assist the trial court to further the overriding objective of the Civil Procedure Act of having disputes resolved justly, efficiently, affordably and timeously as envisaged in section 1A of the Civil Procedure Act. In short, I see no justification to award costs to the appellant although this appeal has been decided in his favour.
30. I will however reiterate what this court stated in Henry Lumumba & Another v Joseph M. Livondo Kakamega ELC MISC CASE NO. E021 OF 2025, that before a suit is filed, a party ought first to check important matters concerning the dispute, chief among them being capacity, jurisdiction, limitation and merits of the claim among other matters. Clearly, this was not considered by the 1st respondent.
31. The upshot of the above is that the appeal succeeds. The lower court judgment is set aside and substituted with an order that the plaint dated 15th December 2022 is hereby struck out. Each party shall bear its own costs of the appeal and costs in the court below.
32. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 28TH DAY OF JANUARY, 2026
In the presence of;
Mr. Momanyi for the appellant
No appearance for the respondent
Court Assistant: Delphine