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Gideon Kingori Ndungu (Deceased) died on 31 st August, 2022. It is alleged that he was survived by two (2) widows. Lucy Njeri Mburu (Citor) cited Tabitha Mumbi Kingori to accept or refuse letters of Administration of all the estate of the deceased. She averred that she had four (4) children with the deceased.
In response, Tabitha Mumbi Kingori, the Citee, urged that she married the deceased in 1979 and were blessed with four (4) adult children, and, throughout their marriage she never heard of the Citor. That she was not part of eulogy at the burial. That it was when she went to collect an introduction letter to file a succession cause from the Area Chief that she heard of another woman claiming to be a Widow of the deceased. That the Citor being an imposter, there was no credible evidence attached to the Citation. She prayed for dismissal of the Citation.
The trial court considered the Citation and reached a finding that the material placed before the court did not disclose that the Citor was materially married to the deceased. In the result, the Citation was dismissed as being materially defective and untenable.
Aggrieved, Lucy Njeri, the Appellant, preferred an appeal on grounds that as follows;
That the learned trial Magistrate erred in law and in fact in declining to proceed with the Citation dated 01/09/2023 by way of viva voce evidence despite the parties consensus on the same and the nature of the facts and evidence by the parties.
That the learned trial Magistrate erred in law and in fact in finding that there was no evidence that the Appellant was married to the deceased.
That the learned trial Magistrate erred in law and in fact in failing to evaluate the pleadings on record, the written submissions while deciding the case.
That the learned trial Magistrate erred in law and in fact for denying the parties a chance to tender and present their evidence in court thus violating their constitutional rights to a fair hearing.
That the learned trial Magistrate erred in law and in fact in dismissing the citation filed by the Appellant.
The appeal was disposed through written submissions. It is urged by the Appellant that when the matter came up for hearing parties wanted to have the matter disposed through written submissions but the court proceeded to give directions on written submissions. That even through written submissions parties reiterated that the matter should proceed through oral evidence given that issues in contention were weighty but the court disregarded the plea by the parties and proceeded to write a ruling.
That the Citor’s affidavits and witness statements were not given any consideration and the finding that the Citor was not married to the deceased was given without any reasons why the court arrived at the decision.
That the deponents of the affidavits required to be subjected to cross – examination. It was not possible to determine whether the Citor was married to the deceased or not without oral evidence and written submissions by parties could not substitute evidence. That the ruling does not contain a concise statement of the case and reasons for the decision. Reliance in this regard is placed on the case of South Nyanza Sugar Co. Ltd v Maureen Atieno Ngere, Migori HCCA No. 97 of 2015 and Likizo Ltd v Mumbo’s & 5 Others (E) Petition 19 of 2017) (2024) KECL 2009 (KLR) 24 th October, 2024.
On her part the Respondent submits that the she proceeded to petition for letters of Administration intestate, Nyahururu CM Succession Cause No. E130 of 2025 which was gazetted through Gazette Notice No. 9860, a fact known to the Appellant who filed a caveat dated 11 th August, 2025 as well as an objection to making of grant.
That for the reason given, the appeal has been overtaken by events as issues raised in the Citation will be dealt with in the Succession Cause. That if the appeal is allowed and ruling set aside, it will mean that the Citation can still be pursued which is not possible due to continuing Succession Cause.
This is a first appellate court whose duty is to re – examine the trial court record and ultimate decision then come to its own conclusion. In evaluating what transpired this court must ensure that the trial court was correct in application of the law and facts before it. In so doing, I have taken into consideration rival arguments so as to ensure justice prevails.
Arguments put forth by the appellate court are not in dispute save that the Respondent argues that the appeal has been overtaken by events.
A careful analysis of the impugned proceedings indeed show that the Citation was vehemently opposed by the Respondent. When it came up for directions, parties sought to proceed through viva voce evidence. However, the trial court gave directions for the matter to proceed through written submissions.
This was a matter where marriage by the deceased to the Citor was contested. Most probably viva voce evidence if adduced would have enabled the court to assess the credibility of the witnesses. The court by imposing its own directions on the parties was a significant failure to follow the laid down procedure.
The outright procedural irregularity breached fair hearing became both parties, the Citor and Citee were denied the right to adduce evidence and be cross – examined to establish their credibility. The contested affidavit evidence and submissions thereto could not be verified as to the inconsistences or falsehoods that may have been present. This led to a miscarriage of justice.
That said, the Citor (Appellant), cited the Respondent (Citee) to take or refuse letters of Administration intestate. It was averred that the Citor was desirous of obtaining the letters of Administration of the deceased if the Citee was unwilling to do so. In reaching its decision the court was guided by the case of In Re Estate of Josiah Muli [2017] KEHC 8172 where Musyoka J, stated that;
“In intestacy, citations issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The Citor should not be a person who has himself already applied for the grant, for the Citor should only apply for grant after the Citee fails to so apply.”
However, the court deviated and reached a decision that the Citation was materially defective and untenable. This was a misdirection .
In Re Estate of Josiah Muli (supra) it was stated that;
“8.The law on citations is in Part VI of the propound and Administration Rules. There are three types of citations – to accept or refuse a grant, to take probate and to proposed a will. In intestacy, a person entitled to administration may be cited by the court to accept or refuse a grant of letters of administration intestate. The person respond should reset to the citation by either renouncing his entitlement to apply for the grant or by applying for the grant. If he fails to appear upon being cited or to apply for grant, the Citor may proceed to petition for the grant.”
Although the court failed to pronounce itself on the question or the person to petition the grant by its ruling dated 2 nd December, 2024, subsequently per the submissions of the Respondent, the Respondent did petition for letters of Administration intestate in Nyahururu CM Succession Cause No. E130 of 2025 where the Appellant has filed a caveat and an objection to making of the grant. This progressed when parties were fully aware of the pending appeal.
In Estate of Juma Yussuf (Deceased) [2019] eKLR Gikonyo J, stated that;
“A citation is issued to take up or refuse grant of probate or letters of administration of the estate. Once, a cause has been filed in respect of the deceased, a citation is no longer necessary.”
The Probate and Administration Cause in respect of the estate of the deceased was propelled into place by the Citation that was filed by the Appellant despite being dismissed. The prayer sought includes an order that the ruling dated 2 nd December, 2024, be set aside in its entirety and that the Nyahururu CM Citation No. E063 of 2023 be placed for hearing and determination by way of viva voce evidence.
The miscarriage of justice occasioned call for overturning of the decision so that the matter can be retried. However, this is a family matter which calls for the estate of the deceased being determined and ultimately distributed in order for there to be no room for intermeddling. Since the Appellant is voluntarily participating in the succession matter that she prompted, it will not be procedural for the Citation and Succession Cause to run parallel. For that reason, I disallow the appeal with no orders as to costs.
It is so ordered.
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Gideon Kingori Ndungu (Deceased) died on 31 st August, 2022. It is alleged that he was survived by two (2) widows. Lucy Njeri Mburu (Citor) cited Tabitha Mumbi Kingori to accept or refuse letters of Administration of all the estate of the deceased. She averred that she had four (4) children with the deceased.
In response, Tabitha Mumbi Kingori, the Citee, urged that she married the deceased in 1979 and were blessed with four (4) adult children, and, throughout their marriage she never heard of the Citor. That she was not part of eulogy at the burial. That it was when she went to collect an introduction letter to file a succession cause from the Area Chief that she heard of another woman claiming to be a Widow of the deceased. That the Citor being an imposter, there was no credible evidence attached to the Citation. She prayed for dismissal of the Citation.
The trial court considered the Citation and reached a finding that the material placed before the court did not disclose that the Citor was materially married to the deceased. In the result, the Citation was dismissed as being materially defective and untenable.
Aggrieved, Lucy Njeri, the Appellant, preferred an appeal on grounds that as follows;
That the learned trial Magistrate erred in law and in fact in declining to proceed with the Citation dated 01/09/2023 by way of viva voce evidence despite the parties consensus on the same and the nature of the facts and evidence by the parties.
That the learned trial Magistrate erred in law and in fact in finding that there was no evidence that the Appellant was married to the deceased.
That the learned trial Magistrate erred in law and in fact in failing to evaluate the pleadings on record, the written submissions while deciding the case.
That the learned trial Magistrate erred in law and in fact for denying the parties a chance to tender and present their evidence in court thus violating their constitutional rights to a fair hearing.
That the learned trial Magistrate erred in law and in fact in dismissing the citation filed by the Appellant.
The appeal was disposed through written submissions. It is urged by the Appellant that when the matter came up for hearing parties wanted to have the matter disposed through written submissions but the court proceeded to give directions on written submissions. That even through written submissions parties reiterated that the matter should proceed through oral evidence given that issues in contention were weighty but the court disregarded the plea by the parties and proceeded to write a ruling.
That the Citor’s affidavits and witness statements were not given any consideration and the finding that the Citor was not married to the deceased was given without any reasons why the court arrived at the decision.
That the deponents of the affidavits required to be subjected to cross – examination. It was not possible to determine whether the Citor was married to the deceased or not without oral evidence and written submissions by parties could not substitute evidence. That the ruling does not contain a concise statement of the case and reasons for the decision. Reliance in this regard is placed on the case of South Nyanza Sugar Co. Ltd v Maureen Atieno Ngere, Migori HCCA No. 97 of 2015 and Likizo Ltd v Mumbo’s & 5 Others (E) Petition 19 of 2017) (2024) KECL 2009 (KLR) 24 th October, 2024.
On her part the Respondent submits that the she proceeded to petition for letters of Administration intestate, Nyahururu CM Succession Cause No. E130 of 2025 which was gazetted through Gazette Notice No. 9860, a fact known to the Appellant who filed a caveat dated 11 th August, 2025 as well as an objection to making of grant.
That for the reason given, the appeal has been overtaken by events as issues raised in the Citation will be dealt with in the Succession Cause. That if the appeal is allowed and ruling set aside, it will mean that the Citation can still be pursued which is not possible due to continuing Succession Cause.
This is a first appellate court whose duty is to re – examine the trial court record and ultimate decision then come to its own conclusion. In evaluating what transpired this court must ensure that the trial court was correct in application of the law and facts before it. In so doing, I have taken into consideration rival arguments so as to ensure justice prevails.
Arguments put forth by the appellate court are not in dispute save that the Respondent argues that the appeal has been overtaken by events.
A careful analysis of the impugned proceedings indeed show that the Citation was vehemently opposed by the Respondent. When it came up for directions, parties sought to proceed through viva voce evidence. However, the trial court gave directions for the matter to proceed through written submissions.
This was a matter where marriage by the deceased to the Citor was contested. Most probably viva voce evidence if adduced would have enabled the court to assess the credibility of the witnesses. The court by imposing its own directions on the parties was a significant failure to follow the laid down procedure.
The outright procedural irregularity breached fair hearing became both parties, the Citor and Citee were denied the right to adduce evidence and be cross – examined to establish their credibility. The contested affidavit evidence and submissions thereto could not be verified as to the inconsistences or falsehoods that may have been present. This led to a miscarriage of justice.
That said, the Citor (Appellant), cited the Respondent (Citee) to take or refuse letters of Administration intestate. It was averred that the Citor was desirous of obtaining the letters of Administration of the deceased if the Citee was unwilling to do so. In reaching its decision the court was guided by the case of In Re Estate of Josiah Muli [2017] KEHC 8172 where Musyoka J, stated that;
“In intestacy, citations issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The Citor should not be a person who has himself already applied for the grant, for the Citor should only apply for grant after the Citee fails to so apply.”
However, the court deviated and reached a decision that the Citation was materially defective and untenable. This was a misdirection .
In Re Estate of Josiah Muli (supra) it was stated that;
“8.The law on citations is in Part VI of the propound and Administration Rules. There are three types of citations – to accept or refuse a grant, to take probate and to proposed a will. In intestacy, a person entitled to administration may be cited by the court to accept or refuse a grant of letters of administration intestate. The person respond should reset to the citation by either renouncing his entitlement to apply for the grant or by applying for the grant. If he fails to appear upon being cited or to apply for grant, the Citor may proceed to petition for the grant.”
Although the court failed to pronounce itself on the question or the person to petition the grant by its ruling dated 2 nd December, 2024, subsequently per the submissions of the Respondent, the Respondent did petition for letters of Administration intestate in Nyahururu CM Succession Cause No. E130 of 2025 where the Appellant has filed a caveat and an objection to making of the grant. This progressed when parties were fully aware of the pending appeal.
In Estate of Juma Yussuf (Deceased) [2019] eKLR Gikonyo J, stated that;
“A citation is issued to take up or refuse grant of probate or letters of administration of the estate. Once, a cause has been filed in respect of the deceased, a citation is no longer necessary.”
The Probate and Administration Cause in respect of the estate of the deceased was propelled into place by the Citation that was filed by the Appellant despite being dismissed. The prayer sought includes an order that the ruling dated 2 nd December, 2024, be set aside in its entirety and that the Nyahururu CM Citation No. E063 of 2023 be placed for hearing and determination by way of viva voce evidence.
The miscarriage of justice occasioned call for overturning of the decision so that the matter can be retried. However, this is a family matter which calls for the estate of the deceased being determined and ultimately distributed in order for there to be no room for intermeddling. Since the Appellant is voluntarily participating in the succession matter that she prompted, it will not be procedural for the Citation and Succession Cause to run parallel. For that reason, I disallow the appeal with no orders as to costs.
It is so ordered.
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