1. This appeal filed through a memorandum dated 30/9/2022 is based on some twelve grounds some of which upon being merged are as follows:
a. The learned trial magistrate erred in fact and in law in denying the appellant a hearing.
b. The learned trial magistrate erred in fact and in law by allowing the protest when there was no evidence to support the finding.
c. The learned trial magistrate erred in fact and in law by distributing the estate of the deceased to strangers and according to a Will that did not make provision for the deceased’s children yet the succession cause had been filed as intestate.
d. The learned trial magistrate erred in law and in fact in following a Will that was allegedly signed less than a month to the deceased’s death when he had no capacity to make the Will.
e. The learned trial magistrate erred in law and in fact in failing to note that the certificates of birth for the protestor’s children were procured after the death of the deceased and they were not his biological children.
f. The learned trial magistrate erred in law and in fact failing to follow the law on dependency and when there was no proof of dependency.
g. The learned trial magistrate erred in law and in fact in continuing to distribute the deceased’s estate even after noting that one Paul Kamau, an alleged beneficiary had not been notified yet failing to order that he be served and heard before making the judgment.
h. The learned trial magistrate erred in fact and in law by denying other beneficiaries a hearing and failing to ascertain if they had been served yet they were unrepresented.
i. The learned trial magistrate erred in law and in fact in holding that the protestor was married to the deceased under customary law yet there was no proof of registration of the customary marriage.
2. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
3. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
4. I am well guided by these principles in the consideration and determination of this appeal.
5. The background to the appeal is that Patrick Karebe Muriithi, the appellant herein, whom I will refer to as the petitioner in some instances for purposes of clarity, is a son of Joseph Muriithi Nyaga alias Muriithi Nyaga (deceased) who died on 17/2/2010 and whose estate is under consideration for administration. The petitioner was granted Letters of Administration Intestate to the estate of the deceased on 9th March 2018 by the Magistrates Court at Wang’uru. The petitioner took out summons for confirmation of grant dated 2/5/2019 together with a supporting affidavit sworn on even date. He also filed He also filed alongside the summons for confirmation a consent to confirmation of grant General Form R40(8) and named the dependents as Patrick Karebe Muriithi, Lilian Wawira Nyaga, Mary Wambui Muriithi, Penina Wakabari Githinji, Janet Wanjiru Mugo, Susan Wathimu Muhoro and Joyce Njoki Muriithi. There is a national identification card number and signature appearing against each of these names in the summons. Patrick is indicated to be a son and the rest as daughters of the deceased. The following are also indicated as other dependents who survived the deceased: Lucy Wangui Mwangi, Grace Wanja Gitau, Ann Wangithi Gachewa, Julius Gitari Zakaria, Janet Wanjiru Mugo and Susan Wathimu Muhoro.
6. Mercy Kathambi Nyaga, the respondent herein, whom I will refer to as the protestor, claiming to be the 2nd wife of the deceased, filed an affidavit of protest sworn on 2/7/2019 against confirmation of the grant issued to the petitioner. She deposed that she had four children with the deceased and provided their certificates of birth with the following names and dates of birth:
a. Olive Mukami born 27/11/2000
b. Shalon Nkatha born 17/7/2002
c. Ann Kathoni born 27/4/2005
d. Risper Njeri born 27/4/2005
7. The protestor deposed further that the petitioner had failed to involve her in the process of succession of the deceased’s estate and so she had not given her consent to the process.
8. The petitioner filed a replying affidavit sworn on 12/11/2019 to the affidavit in protest. He deposed that the deceased was married to only one wife, Esther Muthoni Muriithi (deceased) and that the protestor was an impostor and her children were not children of the deceased. He deposed that all the certificates of birth for the said children had been issued after the demise of his father, the deceased and therefore were forgeries and even if they were not forgeries, they were issued at Mathangauta a place where his father was not residing during his lifetime, at Kimbimbi or Kiuria.
9. The trial court directed that the protest be heard by way of viva voce evidence and each party was directed to file witness statements. The petitioner filed statements by two witnesses both dated 12/11/2019 for Patrick Munene Lukotho and Francis Ndung’u Kamau. The protestor filed two witness statements as well for Douglas Kinyua Mbaka and Janice Njeri Njega as well as her own all dated 26/8/2019.
10. The protest came up for hearing on various dates. The protestor testified on 18/11/2019 and made available one witness, Douglas Kinyua Mbaka. After the protestor had closed her case, Mr. Nduku Njuki learned counsel for the petitioner indicated that they will be calling two independent witnesses and applied orally for witness summonses to issue to the Registrar of Births to make available records of how the certificates of births for the protestor’s children had been issued. The protest was fixed for hearing of the petitioner’s case on 24/2/2020.
11. On 24/2/2020, the petitioner was present but his advocate was absent. The court granted a last adjournment and fixed the matter for hearing on 27/4/2020. It is a matter of general notoriety that of which this court and any other court would take judicial notice under section 60 of the Evidence Act (Cap. 80) Laws of Kenya that this date fell in the period of the Covid 19 pandemic when operations of the courts were disrupted.
12. On 11/8/2020 both advocates or their representatives fixed the matter for hearing on 12/10/2020. On that date, both the petitioner and his advocate Mr. Nduku were absent. The court was not impressed and directed the petitioner’s case to be closed and parties to file submissions and fixed a mention dated for 11/11/2020 to take a date for ruling. Not even the submissions were filed as directed.
13. Nothing appears to have transpired from that time until over one year later on 23/12/2021 when the proceedings indicate that one Mary for Nduku (counsel for the petitioner) was present and matter fixed for hearing of the protest on 7/3/2021. I suppose this activity took place at the registry.
14. Again, the record shows that nothing transpired until over one year later on 17/3/2022 when one Keziah for Bwonwong’a & Co. Advocates was present with no appearance for Nduku Njuki the petitioner and the matter was fixed for mention 13/6/2022. Again, this activity should have taken place at the registry.
15. On 13/6/2022 counsels for the parties appeared and Mrs Magara for the protestor indicated that the matter was due for submissions. The submissions had never been filed since 12/10/2020 when the court closed the petitioner’s case without hearing the petitioner and directed that submissions be filed by both parties and a mention date of 11/11/2020 to confirm the same and fix a date for judgment. Learned counsel Mr. Njuki for the petitioner indicated that he was praying to file a formal application to reopen the case. Mrs Magara responded that they were not opposed to reopening subject to payment of KShs 5,000/= as throw away costs. By consent, the petitioner’s case was reopened and hearing fixed for 1/8/2022.
16. On 1/8/2022, the protestor appeared in person and informed the court that her lawyer, that is Mrs Magara, was unwell. Later Ms Kimata appeared holding brief for Mrs Magara with Maina holding brief for Nduku and indicated that Nduku was ready to proceed. The matter was set to proceed after call over. However, later in the afternoon Mrs Magara for the protestor is recorded as being present. Mr. Nduku then informed the court that he had not seen his client and prayed for a date in the course of the week. The court fixed the matter for further mention the following day on 2/8/2022 at 11.30 a.m.
17. The following day 2/8/2022 Mrs Magara for the protestor was present but Mr. Nduku Njuki for the petitioner was not and the petitioner was also not present. The learned trial magistrate then remarked that, “Matter was for petitioner’s case yesterday. It was given today’s date due to absence of petitioner. It is now 12.30 p.m. petitioner’s advocate is also absent. Petitioner’s case closed this being a 2017 matter. The protestor’s submissions to be filed within the course of the week. Judgment on 5/9/2022.”
18. The protestor duly filed her submissions on 4/8/2022 and the trial court delivered the judgment as fixed on 5/9/2022.
19. For reasons that will become apparent in the analysis that follows, I will not set out the evidence tendered before the trial court.
20. Those proceedings and resulting judgment led to the present appeal by the petitioner through the memorandum dated 30/9/2022 premised on the grounds set out above.
21. The first ground of appeal is that the learned trial magistrate erred in fact and in law by denying the appellant a hearing.
22. Learned counsel for the appellant submits that on both dates when the petitioner and his advocate failed to attend court for the hearing of the petitioner’s case, the advocate had not notified the petitioner of the date for hearing. Learned counsel has cited the case of Mandeep Chauhan v Kenyatta National Hospital & 2 others [2013] KEHC 6915 (KLR) where the High Court cited the decision of Chigamoy Owiny Dollo in the Ugandan case of The Management of Committee of Makondo Primary School and Anotr v Uganda National Examination Board, HC Civil Misc Applic No.18 of 2010, to the effect that:
“it is cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any lay that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase ‘audi alteram partem’ literally translates into ‘hear the parties in turn’, and has been appropriately paraphrased as ‘do not condemn anyone unheard’. This means a person against whom there is a complainant must be give a just and fair hearing.”
23. Therefore, learned counsel submits that the mistake of counsel should not be visited upon the client. She cites the decision of Court of Appeal in Murai vs. Wainaina (No. 4) [1982] KLR 38 to the effect that mistakes do occur in the process of litigation thus:
“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of Justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that Courts of Justice themselves make mistakes which are politely referred to us erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.”
24. On her part, learned counsel for the respondent supports the learned magistrate’s finding that the appellant was granted several adjournments to appear before the court and testify but failed to do so and closed the appellant’s case on 2/8/2022. Learned counsel submits that the learned trial magistrate did not err in law. She terms the appellant as dishonest, untruthful and selfish.
25. I have carefully considered the proceedings before the trial court to determine whether the complaint by the appellant that he was denied a hearing has merit. It is difficult to determine whether indeed the petitioner’s advocate on record at the time failed to inform him of the hearing date because there is no affidavit to support that assertion. It is only through what learned counsel has submitted herein.
26. All the same, I note that there were two errors made by the learned trial magistrate on the last date when the matter came up before the trial court. The first error was that whereas the matter had been fixed for mention on 2/8/2022, the learned trial magistrate treated it as if it was a date for hearing and proceeded to direct that the petitioner’s case was closed due to non-attendance by the petitioner and his advocate.
27. Fixing the matter for mention rather than for hearing on 2/8/2022 was in order because on 1/8/2022 when the matter came up for hearing, learned counsel for the petitioner had indicated that he had not seen his client. In my view, he was probably expecting him but he could not tell why he was absent. He then asked for a very near date, in the course of the week, an indication that he was confident that he would reach him in good time and inform him of the new date. The court in its wisdom, found it not appropriate to fix a date for hearing but for mention. That was wise because the reasoning would have been that, with counsel for the petitioner not having reached his client, it was not proper to fix a date for hearing without first knowing what had held the petitioner back from attending court that day. The mention then should have been to confirm the availability of the petitioner before fixing the date for hearing.
28. However, when the matter came up for the mention the following day, 2/8/2022, the learned trial magistrate seems to have been precipitate in her decision of declaring the case for the petitioner closed. That to me amounted to denying the petitioner a hearing.
29. A little explanation will show why this is so. It is apparent from the proceedings and correspondences in the trial court record that the appellant was always keen and desirous of proceeding with the case. He filed his documents for the hearing of the cause as directed by the court. He also appeared for the hearing even when his advocate was present. His counsel requested for and had a representative attend the registry on the date for fixing dates. The petitioner was therefore not the indolent type who sits and waits for the other party to act. He was vigilante to see to it that the cause was prosecuted. Therefore, his absence from court on 1/8/2022 should have been for good cause. Learned counsel submits that it was because his advocate at the time had failed to inform him of the date and that mistake should not be visited upon the appellant.
30. I would readily agree to this submission given the previous conduct of the appellant in the matter when he duly attended court until 24/2/2020 when he attended but his advocate was absent. The Covid 19 pandemic set in at the time thereby disrupting the normal attendance for court cases such that on the next hearing date of 27/4/2020 no proceedings seem to have been had until 11/8/2020 when the new date for hearing was fixed to be 12/10/2020.
31. The petitioner was absent for the first time on 12/10/2020 together with his advocate. Given that this was still during the Covid 19 pandemic period, absence from court by both is excusable. It is quite possible that the advocate did not inform the petitioner of the date his assistant had fixed on 11/8/2020. Even then, I would be slow to condemn counsel, Mr. Nduku Njuki for allegedly failing to inform the petitioner of the two hearing dates of 12/10/2020 and 1/8/2022. Mr. Nduku Njuki appears to me to have been quite vigilante too in ensuring that the case proceeds for hearing. If indeed he failed to inform his client of the hearing dates, then that must have been an inadvertent and excusable error. As seen from the summary of the court proceedings above, the same were erratic with long spells without action even on dates which had been fixed for proceeding.
32. The second error by the learned trial magistrate was her direction that the protestor’s submissions be filed. With express direction to the protestor and not the parties in general, contrary to what her earlier directions of 12/10/2020 that both parties file their submissions, that appeared to lock out the petitioner from filing submissions on the matter, yet for me the petitioner had actively participated in the proceedings until 1/8/2022. Even if the petitioner would have deliberately failed to attend court to prosecute his case, which I do not find to have been the case, he was still entitled to file submissions on the protestor’s case.
33. In my considered view the action by the learned trial magistrate although based on considerations of expeditious disposal of cases at the same time amounted to denial of the appellant an opportunity to have the succession cause heard and determined on merit which then amounted to a denial of the appellant’s right to access justice under Article 48 of the Constitution as well as his unfettered and unqualified right to a fair hearing under Article 50 as read together with Article 25(c) of the Constitution. I am inclined to find that on that ground, the appeal is meritorious and should be allowed
34. Grounds (c) and (d) above of this appeal are on the learned trial magistrate basing her decision on a will when the succession cause was for an intestate deceased. It is true that upon revoking the grant, the learned magistrate went ahead to direct that the deceased’s estate shall be distributed in line with the will of the deceased and the protestor was required to make it available to court.
35. In arguing these grounds of appeal, learned counsel for the appellant submits that the petitioner filed a protest and relied on a will which was unknown to the beneficiaries of the deceased. Learned counsel submits that the trial court erred in changing the succession cause from being intestate to being testate without first terminating the intestate succession proceedings and then directing that proof of probate under a written will be commenced.
36. Learned counsel for the protestor on her part submits that the petitioner attempted to transfer property of the deceased which was under a will. Learned counsel mixed up several issues in her submissions, some which had not been raised either in the affidavits or written statements of the witnesses and therefore not brought before the court for consideration such as the petitioner intermeddling in the deceased’s estate by attempting to transfer some of the property of the estate.
37. The issue of the deceased’s property being subject of a will was brought forward for the first time to the trial court through the protestor’s submissions. In the submissions, learned counsel for the protestor pointed out that the protestor had first written a letter dated 8/1/2018 to the Principle Magistrate’s Court at Wang’uru and it was in the said letter that the protestor contended that the deceased had a written will on how his estate would be distributed. In fact, in the submissions, learned counsel underlined the words “Deceased had a written Will” which I suppose meant that she was highlighting it for the court’s attention. Learned counsel then submitted further that later on the protestor filed the affidavit of protest against confirmation of the grant followed by her witness statement. It is worth repeating here that the trial court had directed that only the protestor files the submissions. Therefore, the petitioner had no opportunity to challenge the issue of the will being raised for the first time in the submissions.
38. It is interesting that even after writing the alleged letter, which I have tried to trace in the trial court file but could not find, but giving her the benefit of the doubt that somehow, she did file it, the protestor in her affidavit of protest never annexed or even mentioned a written will left behind by the deceased. The record shows that the first time the protestor came in the proceedings was through her advocates Bwonwonga & Company filing a notice of appointment of advocates dated 27/7/2018 and filed in court on 19/9/2018. This was before the petitioner filed the summons for confirmation of grant dated 2/5/2019. The protestor then filed her affidavit of protest sworn on 2/7/2019 on 3/7/2019 where the issue of the deceased’s written will was not mentioned at all. I have considered the protestor’s affidavit in protest, her written witness statement which she adopted as her evidence in chief and her testimony before the trial court and nowhere therein did she mention a written will left behind by the deceased.
39. I therefore find that the trial court was in error to consider an alleged will left behind by the deceased when it was not part of the pleadings or even evidence tendered before the court. There was no will before court that the trial court could have made it the basis of any determination concerning the protest. Consequently, any and all determinations made in the judgment of the trial court based on the alleged written will are invalid and must be and are hereby set aside.
40. The other ground of appeal is that other beneficiaries of the estate other than the petitioner were not given an opportunity to present their evidence on the confirmation of the grant and therefore the protest. Learned counsel for the appellant submits that this was against the provisions of Rule 41 of the Probate and Administration Rules. Learned counsel for the respondent did not address that issue in her submissions.
41. Rule 41(1) of the Probate and Administration Rules provides as follows:
“At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.”
42. Considering this section of the law in the case of In re estate of Robert Mungai Gichinji (Deceased) [2016] KEHC 2377 (KLR) the High Court, W. Musyoka, J. stated as follows:
“Then there is Rule 41 of the Probate and Administration Rules. It deals with the actual hearing of the application for confirmation for grant. The language of Rule 41(1) suggests that the grant, the application, the supporting affidavits and the protest affidavits ought to be read to the administrator applicants, any protestors and ‘any other person interested.’ This would mean that all those interested in the estate ought to be notified of the hearing in order that they may be present when the grant is being confirmed, so that they can raise any issues of concern to them.
The record of 19th May 1995 indicates that apart from counsel for the administrators, there was no attendance by any other person, including the applicants herein. There is nothing on record to indicate that they had been notified of the hearing. They ought to have been so notified in compliance with Rule 41(1) of the Probate and Administration Rules.”
43. In the present case, the persons who were participating in the confirmation of the grant and the protest were the petitioner and the protestor only yet the summons for confirmation of grant indicated that there were no less than six other beneficiaries to the estate who would then be interested in the administration of the estate as provided for under the rule. There is no indication that the court directed that they participate in the hearing as provided for under Rule 41(1) of the Probate and Administration Rules. I am persuaded to follow the decision above and find that the trial court erred in not involving the other beneficiaries in the proceedings for confirmation of the grant.
44. Yet again, in hearing the protest which was within the confirmation proceedings, the court began with taking the evidence of the protestor contrary to the express provisions of Rule 41(1) above that the court “… shall then hear the applicant and each protester and any other person interested, …” an indication that the petitioner ought to have been the first one to be heard since in any case the application for confirmation was his.
45. I therefore find that the procedure adopted by the trial court to start the hearing of the summons for confirmation of the grant with the protestor was in error. It could as well have been the cause of the entire faulty proceedings where the petitioner ended up not presenting his case through no fault of his own.
46. Therefore, from the foregoing consideration of the proceedings before the trial court, I find that the appeal must succeed on the grounds considered herein. Since the rest of the grounds deal with the substance of the protestor’s case before the trial court, it will not be appropriate for this court to delve into them lest it prejudices the decision of the court that will handle the matter.
47. I have noted that another person one Virginia Nyambura Nganga filed a protest dated 6/5/2021 during the pendency of the hearing of the summons for confirmation of the grant. The trial court does not seem to have given it attention. The protestor Virginia Nyambura Nganga deposes that she entered into a sale agreement on 14/11/2017 with the deceased’s daughter Joyce Njoki Muriithi and purchased 1/8 acre from land parcel No. Mwea/Tebere/B/877. She may be mistaken to seek to be included in the succession cause seeing that the alleged transaction took place long after the deceased had died and before succession to the deceased’s estate was completed and Joyce given her share. All the same, the application needed to be formally disposed of either as abandoned or prosecuted to the end. That was not done and it ought to be taken up going forward.
48. Consequently, I find that the appeal has merit and the same succeeds. The judgment of the trial court dated 5/9/2022 is set aside and the case remitted to the magistrate’s court for rehearing of the summons for confirmation of the grant issued herein de novo. For ckarity and emphasis all parties interested in the administration of the estate of the deceased Joseph Muriithi Nyaga alias Muriithi Nyaga should be notified and given an opportunity to present their respective cases at the hearing.
49. Each party to bear his or her own costs.
50. Mention before the Head of station, Wang’uru Magistrates Court or duty court on 4/9/2025 for implementation of the orders herein.
51. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 7th day of August 2025.
ANDAYI W. F.
JUDGE
In the presence of:
… for the Appellant.
… for the Respondent
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
a. The learned trial magistrate erred in fact and in law in denying the appellant a hearing.
b. The learned trial magistrate erred in fact and in law by allowing the protest when there was no evidence to support the finding.
c. The learned trial magistrate erred in fact and in law by distributing the estate of the deceased to strangers and according to a Will that did not make provision for the deceased’s children yet the succession cause had been filed as intestate.
d. The learned trial magistrate erred in law and in fact in following a Will that was allegedly signed less than a month to the deceased’s death when he had no capacity to make the Will.
e. The learned trial magistrate erred in law and in fact in failing to note that the certificates of birth for the protestor’s children were procured after the death of the deceased and they were not his biological children.
f. The learned trial magistrate erred in law and in fact failing to follow the law on dependency and when there was no proof of dependency.
g. The learned trial magistrate erred in law and in fact in continuing to distribute the deceased’s estate even after noting that one Paul Kamau, an alleged beneficiary had not been notified yet failing to order that he be served and heard before making the judgment.
h. The learned trial magistrate erred in fact and in law by denying other beneficiaries a hearing and failing to ascertain if they had been served yet they were unrepresented.
i. The learned trial magistrate erred in law and in fact in holding that the protestor was married to the deceased under customary law yet there was no proof of registration of the customary marriage.
2. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
3. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
4. I am well guided by these principles in the consideration and determination of this appeal.
5. The background to the appeal is that Patrick Karebe Muriithi, the appellant herein, whom I will refer to as the petitioner in some instances for purposes of clarity, is a son of Joseph Muriithi Nyaga alias Muriithi Nyaga (deceased) who died on 17/2/2010 and whose estate is under consideration for administration. The petitioner was granted Letters of Administration Intestate to the estate of the deceased on 9th March 2018 by the Magistrates Court at Wang’uru. The petitioner took out summons for confirmation of grant dated 2/5/2019 together with a supporting affidavit sworn on even date. He also filed He also filed alongside the summons for confirmation a consent to confirmation of grant General Form R40(8) and named the dependents as Patrick Karebe Muriithi, Lilian Wawira Nyaga, Mary Wambui Muriithi, Penina Wakabari Githinji, Janet Wanjiru Mugo, Susan Wathimu Muhoro and Joyce Njoki Muriithi. There is a national identification card number and signature appearing against each of these names in the summons. Patrick is indicated to be a son and the rest as daughters of the deceased. The following are also indicated as other dependents who survived the deceased: Lucy Wangui Mwangi, Grace Wanja Gitau, Ann Wangithi Gachewa, Julius Gitari Zakaria, Janet Wanjiru Mugo and Susan Wathimu Muhoro.
6. Mercy Kathambi Nyaga, the respondent herein, whom I will refer to as the protestor, claiming to be the 2nd wife of the deceased, filed an affidavit of protest sworn on 2/7/2019 against confirmation of the grant issued to the petitioner. She deposed that she had four children with the deceased and provided their certificates of birth with the following names and dates of birth:
a. Olive Mukami born 27/11/2000
b. Shalon Nkatha born 17/7/2002
c. Ann Kathoni born 27/4/2005
d. Risper Njeri born 27/4/2005
7. The protestor deposed further that the petitioner had failed to involve her in the process of succession of the deceased’s estate and so she had not given her consent to the process.
8. The petitioner filed a replying affidavit sworn on 12/11/2019 to the affidavit in protest. He deposed that the deceased was married to only one wife, Esther Muthoni Muriithi (deceased) and that the protestor was an impostor and her children were not children of the deceased. He deposed that all the certificates of birth for the said children had been issued after the demise of his father, the deceased and therefore were forgeries and even if they were not forgeries, they were issued at Mathangauta a place where his father was not residing during his lifetime, at Kimbimbi or Kiuria.
9. The trial court directed that the protest be heard by way of viva voce evidence and each party was directed to file witness statements. The petitioner filed statements by two witnesses both dated 12/11/2019 for Patrick Munene Lukotho and Francis Ndung’u Kamau. The protestor filed two witness statements as well for Douglas Kinyua Mbaka and Janice Njeri Njega as well as her own all dated 26/8/2019.
10. The protest came up for hearing on various dates. The protestor testified on 18/11/2019 and made available one witness, Douglas Kinyua Mbaka. After the protestor had closed her case, Mr. Nduku Njuki learned counsel for the petitioner indicated that they will be calling two independent witnesses and applied orally for witness summonses to issue to the Registrar of Births to make available records of how the certificates of births for the protestor’s children had been issued. The protest was fixed for hearing of the petitioner’s case on 24/2/2020.
11. On 24/2/2020, the petitioner was present but his advocate was absent. The court granted a last adjournment and fixed the matter for hearing on 27/4/2020. It is a matter of general notoriety that of which this court and any other court would take judicial notice under section 60 of the Evidence Act (Cap. 80) Laws of Kenya that this date fell in the period of the Covid 19 pandemic when operations of the courts were disrupted.
12. On 11/8/2020 both advocates or their representatives fixed the matter for hearing on 12/10/2020. On that date, both the petitioner and his advocate Mr. Nduku were absent. The court was not impressed and directed the petitioner’s case to be closed and parties to file submissions and fixed a mention dated for 11/11/2020 to take a date for ruling. Not even the submissions were filed as directed.
13. Nothing appears to have transpired from that time until over one year later on 23/12/2021 when the proceedings indicate that one Mary for Nduku (counsel for the petitioner) was present and matter fixed for hearing of the protest on 7/3/2021. I suppose this activity took place at the registry.
14. Again, the record shows that nothing transpired until over one year later on 17/3/2022 when one Keziah for Bwonwong’a & Co. Advocates was present with no appearance for Nduku Njuki the petitioner and the matter was fixed for mention 13/6/2022. Again, this activity should have taken place at the registry.
15. On 13/6/2022 counsels for the parties appeared and Mrs Magara for the protestor indicated that the matter was due for submissions. The submissions had never been filed since 12/10/2020 when the court closed the petitioner’s case without hearing the petitioner and directed that submissions be filed by both parties and a mention date of 11/11/2020 to confirm the same and fix a date for judgment. Learned counsel Mr. Njuki for the petitioner indicated that he was praying to file a formal application to reopen the case. Mrs Magara responded that they were not opposed to reopening subject to payment of KShs 5,000/= as throw away costs. By consent, the petitioner’s case was reopened and hearing fixed for 1/8/2022.
16. On 1/8/2022, the protestor appeared in person and informed the court that her lawyer, that is Mrs Magara, was unwell. Later Ms Kimata appeared holding brief for Mrs Magara with Maina holding brief for Nduku and indicated that Nduku was ready to proceed. The matter was set to proceed after call over. However, later in the afternoon Mrs Magara for the protestor is recorded as being present. Mr. Nduku then informed the court that he had not seen his client and prayed for a date in the course of the week. The court fixed the matter for further mention the following day on 2/8/2022 at 11.30 a.m.
17. The following day 2/8/2022 Mrs Magara for the protestor was present but Mr. Nduku Njuki for the petitioner was not and the petitioner was also not present. The learned trial magistrate then remarked that, “Matter was for petitioner’s case yesterday. It was given today’s date due to absence of petitioner. It is now 12.30 p.m. petitioner’s advocate is also absent. Petitioner’s case closed this being a 2017 matter. The protestor’s submissions to be filed within the course of the week. Judgment on 5/9/2022.”
18. The protestor duly filed her submissions on 4/8/2022 and the trial court delivered the judgment as fixed on 5/9/2022.
19. For reasons that will become apparent in the analysis that follows, I will not set out the evidence tendered before the trial court.
20. Those proceedings and resulting judgment led to the present appeal by the petitioner through the memorandum dated 30/9/2022 premised on the grounds set out above.
21. The first ground of appeal is that the learned trial magistrate erred in fact and in law by denying the appellant a hearing.
22. Learned counsel for the appellant submits that on both dates when the petitioner and his advocate failed to attend court for the hearing of the petitioner’s case, the advocate had not notified the petitioner of the date for hearing. Learned counsel has cited the case of Mandeep Chauhan v Kenyatta National Hospital & 2 others [2013] KEHC 6915 (KLR) where the High Court cited the decision of Chigamoy Owiny Dollo in the Ugandan case of The Management of Committee of Makondo Primary School and Anotr v Uganda National Examination Board, HC Civil Misc Applic No.18 of 2010, to the effect that:
“it is cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any lay that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase ‘audi alteram partem’ literally translates into ‘hear the parties in turn’, and has been appropriately paraphrased as ‘do not condemn anyone unheard’. This means a person against whom there is a complainant must be give a just and fair hearing.”
23. Therefore, learned counsel submits that the mistake of counsel should not be visited upon the client. She cites the decision of Court of Appeal in Murai vs. Wainaina (No. 4) [1982] KLR 38 to the effect that mistakes do occur in the process of litigation thus:
“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of Justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that Courts of Justice themselves make mistakes which are politely referred to us erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.”
24. On her part, learned counsel for the respondent supports the learned magistrate’s finding that the appellant was granted several adjournments to appear before the court and testify but failed to do so and closed the appellant’s case on 2/8/2022. Learned counsel submits that the learned trial magistrate did not err in law. She terms the appellant as dishonest, untruthful and selfish.
25. I have carefully considered the proceedings before the trial court to determine whether the complaint by the appellant that he was denied a hearing has merit. It is difficult to determine whether indeed the petitioner’s advocate on record at the time failed to inform him of the hearing date because there is no affidavit to support that assertion. It is only through what learned counsel has submitted herein.
26. All the same, I note that there were two errors made by the learned trial magistrate on the last date when the matter came up before the trial court. The first error was that whereas the matter had been fixed for mention on 2/8/2022, the learned trial magistrate treated it as if it was a date for hearing and proceeded to direct that the petitioner’s case was closed due to non-attendance by the petitioner and his advocate.
27. Fixing the matter for mention rather than for hearing on 2/8/2022 was in order because on 1/8/2022 when the matter came up for hearing, learned counsel for the petitioner had indicated that he had not seen his client. In my view, he was probably expecting him but he could not tell why he was absent. He then asked for a very near date, in the course of the week, an indication that he was confident that he would reach him in good time and inform him of the new date. The court in its wisdom, found it not appropriate to fix a date for hearing but for mention. That was wise because the reasoning would have been that, with counsel for the petitioner not having reached his client, it was not proper to fix a date for hearing without first knowing what had held the petitioner back from attending court that day. The mention then should have been to confirm the availability of the petitioner before fixing the date for hearing.
28. However, when the matter came up for the mention the following day, 2/8/2022, the learned trial magistrate seems to have been precipitate in her decision of declaring the case for the petitioner closed. That to me amounted to denying the petitioner a hearing.
29. A little explanation will show why this is so. It is apparent from the proceedings and correspondences in the trial court record that the appellant was always keen and desirous of proceeding with the case. He filed his documents for the hearing of the cause as directed by the court. He also appeared for the hearing even when his advocate was present. His counsel requested for and had a representative attend the registry on the date for fixing dates. The petitioner was therefore not the indolent type who sits and waits for the other party to act. He was vigilante to see to it that the cause was prosecuted. Therefore, his absence from court on 1/8/2022 should have been for good cause. Learned counsel submits that it was because his advocate at the time had failed to inform him of the date and that mistake should not be visited upon the appellant.
30. I would readily agree to this submission given the previous conduct of the appellant in the matter when he duly attended court until 24/2/2020 when he attended but his advocate was absent. The Covid 19 pandemic set in at the time thereby disrupting the normal attendance for court cases such that on the next hearing date of 27/4/2020 no proceedings seem to have been had until 11/8/2020 when the new date for hearing was fixed to be 12/10/2020.
31. The petitioner was absent for the first time on 12/10/2020 together with his advocate. Given that this was still during the Covid 19 pandemic period, absence from court by both is excusable. It is quite possible that the advocate did not inform the petitioner of the date his assistant had fixed on 11/8/2020. Even then, I would be slow to condemn counsel, Mr. Nduku Njuki for allegedly failing to inform the petitioner of the two hearing dates of 12/10/2020 and 1/8/2022. Mr. Nduku Njuki appears to me to have been quite vigilante too in ensuring that the case proceeds for hearing. If indeed he failed to inform his client of the hearing dates, then that must have been an inadvertent and excusable error. As seen from the summary of the court proceedings above, the same were erratic with long spells without action even on dates which had been fixed for proceeding.
32. The second error by the learned trial magistrate was her direction that the protestor’s submissions be filed. With express direction to the protestor and not the parties in general, contrary to what her earlier directions of 12/10/2020 that both parties file their submissions, that appeared to lock out the petitioner from filing submissions on the matter, yet for me the petitioner had actively participated in the proceedings until 1/8/2022. Even if the petitioner would have deliberately failed to attend court to prosecute his case, which I do not find to have been the case, he was still entitled to file submissions on the protestor’s case.
33. In my considered view the action by the learned trial magistrate although based on considerations of expeditious disposal of cases at the same time amounted to denial of the appellant an opportunity to have the succession cause heard and determined on merit which then amounted to a denial of the appellant’s right to access justice under Article 48 of the Constitution as well as his unfettered and unqualified right to a fair hearing under Article 50 as read together with Article 25(c) of the Constitution. I am inclined to find that on that ground, the appeal is meritorious and should be allowed
34. Grounds (c) and (d) above of this appeal are on the learned trial magistrate basing her decision on a will when the succession cause was for an intestate deceased. It is true that upon revoking the grant, the learned magistrate went ahead to direct that the deceased’s estate shall be distributed in line with the will of the deceased and the protestor was required to make it available to court.
35. In arguing these grounds of appeal, learned counsel for the appellant submits that the petitioner filed a protest and relied on a will which was unknown to the beneficiaries of the deceased. Learned counsel submits that the trial court erred in changing the succession cause from being intestate to being testate without first terminating the intestate succession proceedings and then directing that proof of probate under a written will be commenced.
36. Learned counsel for the protestor on her part submits that the petitioner attempted to transfer property of the deceased which was under a will. Learned counsel mixed up several issues in her submissions, some which had not been raised either in the affidavits or written statements of the witnesses and therefore not brought before the court for consideration such as the petitioner intermeddling in the deceased’s estate by attempting to transfer some of the property of the estate.
37. The issue of the deceased’s property being subject of a will was brought forward for the first time to the trial court through the protestor’s submissions. In the submissions, learned counsel for the protestor pointed out that the protestor had first written a letter dated 8/1/2018 to the Principle Magistrate’s Court at Wang’uru and it was in the said letter that the protestor contended that the deceased had a written will on how his estate would be distributed. In fact, in the submissions, learned counsel underlined the words “Deceased had a written Will” which I suppose meant that she was highlighting it for the court’s attention. Learned counsel then submitted further that later on the protestor filed the affidavit of protest against confirmation of the grant followed by her witness statement. It is worth repeating here that the trial court had directed that only the protestor files the submissions. Therefore, the petitioner had no opportunity to challenge the issue of the will being raised for the first time in the submissions.
38. It is interesting that even after writing the alleged letter, which I have tried to trace in the trial court file but could not find, but giving her the benefit of the doubt that somehow, she did file it, the protestor in her affidavit of protest never annexed or even mentioned a written will left behind by the deceased. The record shows that the first time the protestor came in the proceedings was through her advocates Bwonwonga & Company filing a notice of appointment of advocates dated 27/7/2018 and filed in court on 19/9/2018. This was before the petitioner filed the summons for confirmation of grant dated 2/5/2019. The protestor then filed her affidavit of protest sworn on 2/7/2019 on 3/7/2019 where the issue of the deceased’s written will was not mentioned at all. I have considered the protestor’s affidavit in protest, her written witness statement which she adopted as her evidence in chief and her testimony before the trial court and nowhere therein did she mention a written will left behind by the deceased.
39. I therefore find that the trial court was in error to consider an alleged will left behind by the deceased when it was not part of the pleadings or even evidence tendered before the court. There was no will before court that the trial court could have made it the basis of any determination concerning the protest. Consequently, any and all determinations made in the judgment of the trial court based on the alleged written will are invalid and must be and are hereby set aside.
40. The other ground of appeal is that other beneficiaries of the estate other than the petitioner were not given an opportunity to present their evidence on the confirmation of the grant and therefore the protest. Learned counsel for the appellant submits that this was against the provisions of Rule 41 of the Probate and Administration Rules. Learned counsel for the respondent did not address that issue in her submissions.
41. Rule 41(1) of the Probate and Administration Rules provides as follows:
“At the hearing of the application for confirmation the court shall first read out in the language or respective languages in which they appear the application, the grant, the affidavits and any written protests which have been filed and shall then hear the applicant and each protester and any other person interested, whether such persons appear personally or by advocate or by a representative.”
42. Considering this section of the law in the case of In re estate of Robert Mungai Gichinji (Deceased) [2016] KEHC 2377 (KLR) the High Court, W. Musyoka, J. stated as follows:
“Then there is Rule 41 of the Probate and Administration Rules. It deals with the actual hearing of the application for confirmation for grant. The language of Rule 41(1) suggests that the grant, the application, the supporting affidavits and the protest affidavits ought to be read to the administrator applicants, any protestors and ‘any other person interested.’ This would mean that all those interested in the estate ought to be notified of the hearing in order that they may be present when the grant is being confirmed, so that they can raise any issues of concern to them.
The record of 19th May 1995 indicates that apart from counsel for the administrators, there was no attendance by any other person, including the applicants herein. There is nothing on record to indicate that they had been notified of the hearing. They ought to have been so notified in compliance with Rule 41(1) of the Probate and Administration Rules.”
43. In the present case, the persons who were participating in the confirmation of the grant and the protest were the petitioner and the protestor only yet the summons for confirmation of grant indicated that there were no less than six other beneficiaries to the estate who would then be interested in the administration of the estate as provided for under the rule. There is no indication that the court directed that they participate in the hearing as provided for under Rule 41(1) of the Probate and Administration Rules. I am persuaded to follow the decision above and find that the trial court erred in not involving the other beneficiaries in the proceedings for confirmation of the grant.
44. Yet again, in hearing the protest which was within the confirmation proceedings, the court began with taking the evidence of the protestor contrary to the express provisions of Rule 41(1) above that the court “… shall then hear the applicant and each protester and any other person interested, …” an indication that the petitioner ought to have been the first one to be heard since in any case the application for confirmation was his.
45. I therefore find that the procedure adopted by the trial court to start the hearing of the summons for confirmation of the grant with the protestor was in error. It could as well have been the cause of the entire faulty proceedings where the petitioner ended up not presenting his case through no fault of his own.
46. Therefore, from the foregoing consideration of the proceedings before the trial court, I find that the appeal must succeed on the grounds considered herein. Since the rest of the grounds deal with the substance of the protestor’s case before the trial court, it will not be appropriate for this court to delve into them lest it prejudices the decision of the court that will handle the matter.
47. I have noted that another person one Virginia Nyambura Nganga filed a protest dated 6/5/2021 during the pendency of the hearing of the summons for confirmation of the grant. The trial court does not seem to have given it attention. The protestor Virginia Nyambura Nganga deposes that she entered into a sale agreement on 14/11/2017 with the deceased’s daughter Joyce Njoki Muriithi and purchased 1/8 acre from land parcel No. Mwea/Tebere/B/877. She may be mistaken to seek to be included in the succession cause seeing that the alleged transaction took place long after the deceased had died and before succession to the deceased’s estate was completed and Joyce given her share. All the same, the application needed to be formally disposed of either as abandoned or prosecuted to the end. That was not done and it ought to be taken up going forward.
48. Consequently, I find that the appeal has merit and the same succeeds. The judgment of the trial court dated 5/9/2022 is set aside and the case remitted to the magistrate’s court for rehearing of the summons for confirmation of the grant issued herein de novo. For ckarity and emphasis all parties interested in the administration of the estate of the deceased Joseph Muriithi Nyaga alias Muriithi Nyaga should be notified and given an opportunity to present their respective cases at the hearing.
49. Each party to bear his or her own costs.
50. Mention before the Head of station, Wang’uru Magistrates Court or duty court on 4/9/2025 for implementation of the orders herein.
51. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 7th day of August 2025.
ANDAYI W. F.
JUDGE
In the presence of:
… for the Appellant.
… for the Respondent
Job: Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.