A. Background
1. The estate concerned is that of the late MUTULILE WAFULA KINYOSI, who, according to his Certificate of Death (registered 11th September 2017, on the information of his son, the Respondent), died intestate on 7th April 1984 at Bitobo Sub-Location, Napara, Bungoma. His principal asset was the land parcel known as W.BUKUSU/W.SIBOTI/459, measuring approximately 4.6 hectares (11¼–11½ acres) ("the suit land"). He was survived by five sons — Khaemba Wafula Mutulile, Wanyama Wafula Mutulile, Joseph Nyongesa Wafula, Wafula Wachiye Kinyosi, and Sikuku Wafula Mutulile, the Respondent — each of whom, with his wife and children, constitutes a "house" for purposes of this succession. By the time the petition herein was filed in March 2018, four of the five sons — including Khaemba Wafula Mutulile, the Appellant's late father — had themselves died, leaving the Respondent the sole surviving son.
2. The Appellant, Peter Wanyonyi Khaemba, is a grandson of the deceased and a son of the late Khaemba Wafula Mutulile, the first-born of the deceased's five sons. He appears on behalf of his late father's house.
3. It is common ground, and borne out by the numerous land purchase agreements exhibited in the lower Court record, that portions of the suit land have been sold to third parties at various times since at least the 1970s — some, on the evidence, by the deceased himself in his lifetime; others, later, by his sons or their houses; and at least one, on the Appellant's sworn and so far unrebutted account, by the Respondent personally, years before he held any grant of representation.
B. Procedural history before the trial Court
4. On 28th March 2018 the Respondent swore an affidavit in support of a petition for letters of administration intestate, presenting himself as sole petitioner in the capacity of "son", and on the same day a Form 38 Consent to the Making of a Grant of Administration Intestate to the Equal or Lesser Priority was circulated for signature by eleven other persons said to have an equal or lesser right, proposing that the grant issue to the Respondent alone. The Appellant's name appears third on that list — and his signature line is blank. He did not consent to a sole grant in the Respondent's favour.
5. A grant issued to the Respondent alone on 7th June 2018. On 5th September 2018 the Appellant, jointly with Daniel Mukhebi, filed a Certificate of Urgency and an Application to revoke that grant, styling themselves 1st and 2nd Objector/Applicant against the Respondent as Petitioner/Respondent, and asserting that the Respondent was disposing of estate land without the other beneficiaries' consent. That objection succeeded: the 7th June 2018 grant was nullified.
6. On 26th August 2020 — sealed and issued on 14th November 2022 — a fresh Grant of Letters of Administration Intestate (Form 41) issued jointly to DICKSON MUTULILE (the Respondent), PETER KHAEMBA (the Appellant), DANIEL MUKHEBI, and ELECTINE WANYAMA. From that point, the Appellant held office as a co-administrator of the estate on the same footing as the Respondent, whatever his earlier refusal to consent to a sole grant in 2018. This is a significant feature of the record which the Ruling under appeal does not acknowledge at all.
7. On 20th December 2022 the Respondent alone filed summons for confirmation of grant dated 7th December 2022, with his own proposed mode of sharing. Around the same period, a document dated 29th December 2022, bearing the names of the four co-administrators and proposing five equal shares of 2¼ acres with no allowance for purchasers, was drawn on the Appellant's side. I would caution, however, against treating that document as a rival order the trial Court was bound to formally address: it was not, on the material before me, annexed to and relied upon in any competing summons for confirmation placed before the Court under Rule 40 of the Probate and Administration Rules, and a consent document of this kind acquires operative legal force only within that framework. Its significance here is narrower — as context for what the co-administrators had, at one point, been willing to accept, and as part of the picture against which the Appellant's later protest must be read — not as an unadjudicated order.
8. The Appellant, describing himself as 2nd Petitioner and purporting to act also for the 3rd Petitioner (Daniel Mukhebi), swore an affidavit of protest against the Respondent's summons. He deposed that: (a) the Respondent's proposed schedule excluded two of the four co-administrators, Daniel Mukhebi and Electine Wanyama, entirely; (b) the Respondent had himself sold part of the estate as early as 19th February 1993 — nine years after the deceased's death and decades before any grant existed — exhibiting a copy of that agreement; and (c) a material number of the persons listed as "purchasers" had bought their portions from the Respondent directly, not from the deceased or from the house to which the relevant portion had historically been allotted. A 2018 affidavit by Godfrey Simiyu Wachiye, the Respondent's own son, similarly complained that his father was disposing of estate land to the detriment of other beneficiaries.
9. A Certificate of Confirmation of Grant issued in the Respondent's favour alone on 11th May 2023, adopting his proposed schedule: the Respondent's house retaining 0.9 hectares, the Appellant's house (jointly with his brother) reduced to a combined 0.5 hectares, and the balance allocated among thirty named individuals, some eighteen to twenty of whom are described as third-party purchasers. That confirmation was itself set aside by a Ruling of 30th November 2023. The trial Court there recording that a co-administrator had not been notified of the confirmation hearing and that his name had been "left out as an administrator." The matter was reheard, and on 14th February 2024 the trial Court delivered the Ruling now under appeal, again confirming the grant substantially as per the Respondent's proposed schedule, on the footing that "the purchasers are entitled to the share of the land as they are genuine purchasers" notwithstanding that the objectors — including a fellow administrator — had, in the trial Court's own words, contended "that they did not know the purchase[s]."
C. The appeal
10. The Appellant's Memorandum of Appeal dated 27th February 2024 raises seven grounds:
i. that the trial magistrate erred in failing to consider that the deceased had only five sons entitled to inherit, and that the Appellant was a co-administrator alongside three other administrators, including the Respondent;
ii. that the trial magistrate erred in confirming the grant without considering that liabilities/purchasers were not entitled to shares absent proof of sale agreements showing how they acquired land from the deceased;
iii. that the trial magistrate erred in failing to consider or agree with the proposed equal mode of sharing amongst the five sons, per the preferred consent of mode of distribution made on 29th December 2022 and filed by the Appellant;
iv. that the trial magistrate erred in failing to consider that the late Wachiye Wafula Kinyosi was no longer a beneficiary and ought to have been substituted before confirmation;
v. that the trial magistrate erred in confirming strangers as heirs/beneficiaries without considering the Appellant's submission that the deceased sold only 0.05 hectares (to Mourice Mukhebi Wakwabubi) and that the other purchasers bought their shares from the Respondent prior to the filing of this cause;
vi. that the Ruling and distribution were biased ab initio; and
vii. that the trial magistrate erred in allowing and including purchasers in the confirmation of grant when it was clear they had no proof of how they acquired their portions from the deceased.
11. The Appellant prays that the Ruling be set aside and the estate redistributed equally among the five houses. The Respondent maintains that the Appellant has never been an administrator, that the purchasers are genuine, and that the appeal should be dismissed.
D. The duty of a first appellate Court
12. This being a first appeal, my duty is that stated by the Court of Appeal for Eastern Africa in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123: this Court must reconsider the evidence, evaluate it afresh, and draw its own independent conclusions, giving due allowance for the trial Court's advantage in seeing and hearing the parties.
E. Analysis and determination
(a) Co-administration — Ground 1
13. On the record, the Appellant's position is more nuanced than either side's submissions allow. In March 2018 he was invited, along with ten others, to consent to a grant in the Respondent's favour alone, and he declined — his signature line on the Form 38 consent is blank. That refusal, followed by a formal objection he filed with Daniel Mukhebi in September 2018, led to the nullification of the sole grant that had issued in June 2018. What followed was not a return to the status quo but a fresh, joint Grant of Letters of Administration Intestate, made on 26th August 2020 and issued on 14th November 2022, naming the Appellant one of four administrators alongside the Respondent, Daniel Mukhebi and Electine Wanyama. From that date, the Appellant held office as a co-administrator in exactly the same capacity as the Respondent. The Respondent's submissions, both below and on this appeal, that the Appellant "has never been a co-administrator" are, with respect, incorrect, and the Ruling under appeal does not engage with this status at all. A Ruling confirming "the mode of distribution presented by the petition Sikuku Dickson Mutulile" without acknowledging that the objecting party held equal administrative office, and that two of the four administrators were excluded from the Respondent's own proposed schedule, discloses a material omission bearing directly on the proper exercise of the confirmation jurisdiction under Section 71 of the Law of Succession Act (Cap 160) and Rules 40 and 41 of the Probate and Administration Rules. Ground 1 succeeds to this extent.
(b) Purchasers — Grounds 2, 3, 5 and 7
14. Section 71(2) of the Law of Succession Act requires the Court, before confirming a grant, to be satisfied as to the identity of all persons beneficially entitled and their respective shares. The persons beneficially entitled to an intestate estate are defined by Sections 35 to 40 of the Act — the surviving spouse(s), children, and, in default, other specified next-of-kin. A purchaser of estate land, however long-standing his bargain, is not a person beneficially entitled in that sense, and the Certificate of Confirmation is not the instrument by which a contested contractual claim is adjudicated.
15. That is not, however, the end of the matter, because the Act does not leave a genuine purchaser without recourse. Section 82(b)(ii) makes it part of an administrator's ordinary duty to complete a contract for the sale of land which the deceased, or a person with authority to do so, had entered into. Read with Section 83, which requires debts and liabilities of the estate to be settled before the net distributable estate is arrived at, a genuine purchaser's claim to a specific, identified portion ranks ahead of the beneficiaries' shares, not among them: the correct course is to complete the transfer of that specific portion to the purchaser and exclude it from the pool available for distribution, not to list the purchaser as an heir in the Certificate of Confirmation. Properly classified, a genuine purchaser stands closer to a person entitled to completion of an equitable interest in specific land than to an ordinary unsecured creditor, and that status does not diminish his right merely because it is not the status of "beneficiary" the trial Court appears to have accorded him.
16. The whole of this protection, however, is conditional on the vendor having had authority to sell the specific portion in question at the time of the sale. Where the deceased himself sold land in his lifetime — and the evidence here includes at least two such transactions, a 1978 agreement for a plot sold to Maurice Barasa and an asserted 1976 sale to Leo Wanyonyi, besides the Appellant's own concession of a lifetime sale of 0.05 hectares to Mourice Mukhebi Wakwabubi — the purchaser's claim is unimpeachable and Section 82(b)(ii) applies without difficulty. Where a son sold a portion genuinely within his own allotted share, whether before or after the deceased's death, with the acquiescence of the wider family, the position should ordinarily be the same. But where a single administrator — without grant authority, or without his co-administrators' concurrence, or in respect of land outside his own house's allotted portion — purported to sell estate land, there is no valid contract binding the estate at all, whatever the buyer's good faith. That buyer's remedy lies personally against the individual who purported to sell to him, not against the estate or the other houses, and the portion in question remains part of the divisible estate.
17. I do not accept that length of occupation, by itself, answers this question. It was suggested in argument that since occupation by the various purchasers is not disputed, they should be taken to have acquired security of tenure through the passage of time. I would reject that reasoning on the facts of this estate. Adverse possession under Section 38 of the Limitation of Actions Act (Cap 22) requires possession held without, and against, the true owner's consent; it does not run where possession is permissive — for instance, where a purchaser has been let into occupation under a genuine agreement of sale and is simply awaiting completion once the succession is finalised, as appears to be the common understanding among the parties here. On that footing, the passage of time, of itself, neither perfects nor defeats any purchaser's claim. What matters is whether the vendor had authority to sell, of which continuous, unchallenged occupation is at most corroborative evidence — going to show that the wider family accepted the transaction as genuine when it was made — not an independent legal shield. The trial Court should also satisfy itself, for each transaction found to be genuine, whether consent of the Land Control Board was required and obtained. A controlled transaction concluded without such consent within the statutory period is void, in which case the purchaser's remedy against the vendor sounds only in restitution of the price paid, not in a proprietary claim to the land.
18. Applying this framework, the Ruling under appeal cannot stand. It records a bare conclusion that the purchasers are "genuine" without identifying which agreements were examined, without applying the vendor-authority distinction at all, and without engaging the Appellant's specific, sworn allegation that the Respondent himself sold part of the estate in 1993, years before any grant existed. Grounds 2, 5 and 7 succeed to this extent; Ground 3, for the more limited reason given concerning the status of the 29th December 2022 document, succeeds only insofar as the Ruling failed to grapple with the Appellant's status as a co-administrator and with the substance of his protest, not because that document was itself a binding order.
(c) The estates of the deceased's four predeceased sons — Ground 4, reconsidered
19. Ground 4, as pleaded, concerns only the late Wachiye Wafula Kinyosi, but the point it raises is of general application and, in my view, was not fully appreciated by either party below. Each of the deceased's five sons became entitled, on their father's death in 1984, to a vested one-fifth share of the net estate then existing. Where a son has since died, that vested share did not remain part of this estate to be distributed afresh among his children in this cause. It fell into his own estate, and can only now be transmitted onward to his own heirs through representation of that estate — a grant taken out, and a personal representative appointed, in respect of each such son who has since died, unless the whole of his portion was disposed of during his own lifetime, leaving nothing to represent.
20. On the material before me, this applies not only to the house of the late Wachiye Wafula Kinyosi, whose portion does appear to have been sold in its entirety in 1995 to a named purchaser — leaving, on that specific point, nothing outstanding to represent — but potentially also to the houses of the late Wanyama Wafula Mutulile and the late Joseph Nyongesa Wafula, and, tellingly, to the house of the late Khaemba Wafula Mutulile, the Appellant's own father. The Appellant's claim in this cause is, in law, a claim through his father's estate, not a claim in his own right, and it is subject to the same requirement of representation he invokes against the Wachiye house. Nothing in this judgment should be read as doubting the ultimate entitlement of any of these houses; the point is a procedural one, but it is not a technicality — a Certificate of Confirmation purporting to distribute all five shares directly among grandchildren and purchasers, without representation of four sons' intervening estates, is defective however fair the underlying arithmetic may be. This will need to be regularised on the rehearing I order below.
(d) The 1972 distribution and the net distributable estate
21. The Appellant's own proposed solution — an equal division of the whole 4.6 hectares among the five houses, as though nothing had happened to the land since 1984 — cannot be adopted either, and not merely as a matter of fairness to the purchasers. What falls to be distributed in any succession cause is the net estate the deceased actually owned at death, less liabilities. If the deceased sold portions in his lifetime and was paid for them, as the evidence here suggests he did on at least two occasions, those portions were never part of his net estate at all, whatever the position on the register. The Respondent's assertion that the deceased partitioned the whole parcel among his five sons in 1972 stands on a different footing, and could, if properly proved, justify respecting boundaries the family has observed for half a century — but the burden of proving it lies on the Respondent, who has not stated what acreage each son actually received. Without that evidence, the 1972 partition cannot be given effect as a finding of fact. It can only be invoked to justify whatever division a party now prefers, which is not the same thing. This is a matter for oral evidence and independent verification, not for affidavits and photocopied agreements alone.
(e) The alleged forgery of the consent to mode of sharing
22. The Appellant alleges that a consent to the mode of sharing filed in his name — apparently the document at record page 96 — bears a signature he never made, and that he in fact refused to sign it because the proposed distribution was unfavourable to his house. This is a serious allegation and, like any allegation of forgery, is not established by assertion in written submissions. It requires evidence, at minimum the Appellant's own sworn and tested account, and ordinarily comparison with admitted specimen signatures or a document examiner's opinion. But the more fundamental point is the one it exposes: a confirmation founded on a consent that was not truly given is founded on nothing. Where the beneficiaries are not agreed on the mode of distribution, the trial Court's task is to resolve that disagreement on evidence and to say, with reasons, why one proposal is preferred over another — not to record that one proposal appears more reasonable than a rival it does not name or examine. The Ruling under appeal does the latter, and that, too, cannot stand.
(f) Alleged bias — Ground 6
23. I do not find bias established. The record shows the trial Court intervening in the Appellant's favour on two occasions on procedural fairness grounds — nullifying the original 2018 grant, and later setting aside the May 2023 confirmation specifically because a co-administrator had not been notified — which sits uneasily with a suggestion of a closed or partial mind. The real and narrower complaint made out on this record is inadequate reasoning and a failure to engage with material evidence, addressed under the preceding grounds; that is a distinct defect from bias, and I dismiss Ground 6 as such.
(g) The Alfred Kundu Ndalila transaction
24. One transaction deserves particular mention because it illustrates why the vendor-authority inquiry above must be applied without regard to which party would benefit from the outcome. The Respondent's evidence is that on 18th November 2000 the Appellant's own mother, Tilia (Odilia) Nasimiyu Khaemba, and his brother, Joseph Mutulile Wachiye, sold a quarter-acre from the late Khaemba Wafula Mutulile's house to one Alfred Kundu Ndalila, and that the Appellant later destroyed the boundaries of and forcibly evicted that purchaser, a matter said to be substantiated by a chief's letter dated 5th June 2020. The Appellant, for his part, disputes the validity of that very sale, contending that the land sold did not form part of the suit parcel and that the sellers were not authorised to sell it.
25. I make no finding on this transaction; it is precisely the kind of dispute that requires oral evidence and cannot be resolved on affidavit. I note it only to make explicit what should in any event be self-evident: the Appellant has a direct personal interest in this particular sale being found invalid, since any land recovered from it would fall into the very house through which he claims. That is not a reason to disbelieve him, but it is a reason for the trial Court to subject this transaction to exactly the same scrutiny — no more indulgent and no less rigorous — as every other disputed sale on the list, including those the Appellant has challenged on behalf of other houses. The general directions on vendor authority given below apply to this transaction as they do to all the others.
(h) Neither party's proposed distribution can presently be adopted
26. Drawing the foregoing together: the Appellant is right that purchasers cannot be confirmed as beneficiaries, and right that a deceased beneficiary's share must be dealt with through representation of his own estate. The Respondent is right that the net distributable estate is not the whole 4.6 hectares, and right that genuine purchasers — whether they bought from the deceased in his lifetime or from a house dealing lawfully with its own allotted portion — cannot simply be disregarded. Neither side's proposed mode of distribution, as it stands, is sound, and this Court does not have before it the material needed to substitute one of its own: the acreages (if any) of the 1972 partition, the true extent of lifetime and subsequent sales, the current state of occupation on the ground, and proper representation of four intervening estates are all, on this record, unresolved.
F. Conclusion and disposition
27. For these reasons, the Ruling of 14th February 2024 and the Certificate of Confirmation of Grant issued pursuant to it cannot stand, and the appeal is allowed in part. I make the following orders:
(i) The Ruling of Hon. T. M. Olando, Principal Magistrate, delivered on 14th February 2024, and the consequent Certificate of Confirmation of Grant in Bungoma Chief Magistrate's Court Succession Cause No. 101 of 2018, are set aside.
(ii) The application for Confirmation of Grant is remitted to the Chief Magistrate's Court at Bungoma for hearing afresh, before a magistrate other than the Hon. T. M. Olando.
(iii) Before the summons is reheard, the estates of the late Khaemba Wafula Mutulile, the late Wanyama Wafula Mutulile, the late Joseph Nyongesa Wafula and the late Wafula Wachiye Kinyosi shall be represented by their respective personal representatives, or by such beneficiaries of each as the trial Court may direct, save that representation need not be taken out in respect of any son whose entire allotted portion is established to have been validly disposed of during his own lifetime.
(iv) All four persons named in the Grant of Letters of Administration Intestate issued on 14th November 2022 — Dickson Sikuku Mutulile, Peter Wanyonyi Khaemba, Daniel Mukhebi and Electine Wanyama — shall be treated as administrators on an equal footing.
(v) The trial Court shall take oral evidence on:
(a) whether and how the deceased partitioned the suit land among his five sons in 1972, and the acreage allotted to each — the burden of proof resting on who asserts it;
(b) the extent of the portions the deceased himself disposed of during his lifetime;
(c) for each disputed sale, whether the vendor had authority to sell the specific portion at the relevant time, distinguishing sales by the deceased, sales by a house of its own allotted portion, and sales by a single administrator or heir without authority or concurrence;
(d) the Appellant's allegation that the Respondent sold estate land without authority in or about 1993, and any comparable later transaction concluded directly by the Respondent, including but not limited to any 2016 or other transaction that may be raised in evidence;
(e) the validity of the 18th November 2000 sale of a portion of the late Khaemba Wafula Mutulile's house to Alfred Kundu Ndalila, and the allegation that the Appellant subsequently destroyed boundaries and evicted that purchaser, this transaction to be tested to the same standard as every other disputed sale notwithstanding the Appellant's personal interest in its outcome; and
(f) the Appellant's allegation that his signature on the consent to the mode of sharing filed in his name was forged.
(vi) The trial Court shall commission
(a) a report from a licensed surveyor or the Land Registrar, Bungoma, establishing the current occupation, boundaries and acreage of every portion of the suit land, including portions occupied by purchasers; and
(b) a report from the area Chief identifying who is presently in occupation of each such portion and since when, to assist the Court in determining the extent and genuineness of each purchaser's possession.
(vii) Any purchaser found to have acquired his or her portion from a vendor who had authority to sell shall be entitled to completion of that contract under Section 82(b)(ii) of the Law of Succession Act, ranking ahead of the distributable estate under Section 83, and that portion shall be excised from the schedule accordingly; such a purchaser shall not be listed as a beneficiary. Any purchaser found to have acquired his or her portion from a vendor without such authority shall have no claim against the estate, and that portion shall remain part of the divisible estate; that purchaser's remedy, if any, lies personally against the vendor in a Court of competent jurisdiction.
(viii) Each party shall bear his own costs of this appeal. Costs in the Court below shall abide the outcome of the fresh hearing.
28. It is so ordered.
In the presence of:
N/Afor the Appellant
N/A for the Respondents
Court Assistant: Irene Chelang’at
1. The estate concerned is that of the late MUTULILE WAFULA KINYOSI, who, according to his Certificate of Death (registered 11th September 2017, on the information of his son, the Respondent), died intestate on 7th April 1984 at Bitobo Sub-Location, Napara, Bungoma. His principal asset was the land parcel known as W.BUKUSU/W.SIBOTI/459, measuring approximately 4.6 hectares (11¼–11½ acres) ("the suit land"). He was survived by five sons — Khaemba Wafula Mutulile, Wanyama Wafula Mutulile, Joseph Nyongesa Wafula, Wafula Wachiye Kinyosi, and Sikuku Wafula Mutulile, the Respondent — each of whom, with his wife and children, constitutes a "house" for purposes of this succession. By the time the petition herein was filed in March 2018, four of the five sons — including Khaemba Wafula Mutulile, the Appellant's late father — had themselves died, leaving the Respondent the sole surviving son.
2. The Appellant, Peter Wanyonyi Khaemba, is a grandson of the deceased and a son of the late Khaemba Wafula Mutulile, the first-born of the deceased's five sons. He appears on behalf of his late father's house.
3. It is common ground, and borne out by the numerous land purchase agreements exhibited in the lower Court record, that portions of the suit land have been sold to third parties at various times since at least the 1970s — some, on the evidence, by the deceased himself in his lifetime; others, later, by his sons or their houses; and at least one, on the Appellant's sworn and so far unrebutted account, by the Respondent personally, years before he held any grant of representation.
B. Procedural history before the trial Court
4. On 28th March 2018 the Respondent swore an affidavit in support of a petition for letters of administration intestate, presenting himself as sole petitioner in the capacity of "son", and on the same day a Form 38 Consent to the Making of a Grant of Administration Intestate to the Equal or Lesser Priority was circulated for signature by eleven other persons said to have an equal or lesser right, proposing that the grant issue to the Respondent alone. The Appellant's name appears third on that list — and his signature line is blank. He did not consent to a sole grant in the Respondent's favour.
5. A grant issued to the Respondent alone on 7th June 2018. On 5th September 2018 the Appellant, jointly with Daniel Mukhebi, filed a Certificate of Urgency and an Application to revoke that grant, styling themselves 1st and 2nd Objector/Applicant against the Respondent as Petitioner/Respondent, and asserting that the Respondent was disposing of estate land without the other beneficiaries' consent. That objection succeeded: the 7th June 2018 grant was nullified.
6. On 26th August 2020 — sealed and issued on 14th November 2022 — a fresh Grant of Letters of Administration Intestate (Form 41) issued jointly to DICKSON MUTULILE (the Respondent), PETER KHAEMBA (the Appellant), DANIEL MUKHEBI, and ELECTINE WANYAMA. From that point, the Appellant held office as a co-administrator of the estate on the same footing as the Respondent, whatever his earlier refusal to consent to a sole grant in 2018. This is a significant feature of the record which the Ruling under appeal does not acknowledge at all.
7. On 20th December 2022 the Respondent alone filed summons for confirmation of grant dated 7th December 2022, with his own proposed mode of sharing. Around the same period, a document dated 29th December 2022, bearing the names of the four co-administrators and proposing five equal shares of 2¼ acres with no allowance for purchasers, was drawn on the Appellant's side. I would caution, however, against treating that document as a rival order the trial Court was bound to formally address: it was not, on the material before me, annexed to and relied upon in any competing summons for confirmation placed before the Court under Rule 40 of the Probate and Administration Rules, and a consent document of this kind acquires operative legal force only within that framework. Its significance here is narrower — as context for what the co-administrators had, at one point, been willing to accept, and as part of the picture against which the Appellant's later protest must be read — not as an unadjudicated order.
8. The Appellant, describing himself as 2nd Petitioner and purporting to act also for the 3rd Petitioner (Daniel Mukhebi), swore an affidavit of protest against the Respondent's summons. He deposed that: (a) the Respondent's proposed schedule excluded two of the four co-administrators, Daniel Mukhebi and Electine Wanyama, entirely; (b) the Respondent had himself sold part of the estate as early as 19th February 1993 — nine years after the deceased's death and decades before any grant existed — exhibiting a copy of that agreement; and (c) a material number of the persons listed as "purchasers" had bought their portions from the Respondent directly, not from the deceased or from the house to which the relevant portion had historically been allotted. A 2018 affidavit by Godfrey Simiyu Wachiye, the Respondent's own son, similarly complained that his father was disposing of estate land to the detriment of other beneficiaries.
9. A Certificate of Confirmation of Grant issued in the Respondent's favour alone on 11th May 2023, adopting his proposed schedule: the Respondent's house retaining 0.9 hectares, the Appellant's house (jointly with his brother) reduced to a combined 0.5 hectares, and the balance allocated among thirty named individuals, some eighteen to twenty of whom are described as third-party purchasers. That confirmation was itself set aside by a Ruling of 30th November 2023. The trial Court there recording that a co-administrator had not been notified of the confirmation hearing and that his name had been "left out as an administrator." The matter was reheard, and on 14th February 2024 the trial Court delivered the Ruling now under appeal, again confirming the grant substantially as per the Respondent's proposed schedule, on the footing that "the purchasers are entitled to the share of the land as they are genuine purchasers" notwithstanding that the objectors — including a fellow administrator — had, in the trial Court's own words, contended "that they did not know the purchase[s]."
C. The appeal
10. The Appellant's Memorandum of Appeal dated 27th February 2024 raises seven grounds:
i. that the trial magistrate erred in failing to consider that the deceased had only five sons entitled to inherit, and that the Appellant was a co-administrator alongside three other administrators, including the Respondent;
ii. that the trial magistrate erred in confirming the grant without considering that liabilities/purchasers were not entitled to shares absent proof of sale agreements showing how they acquired land from the deceased;
iii. that the trial magistrate erred in failing to consider or agree with the proposed equal mode of sharing amongst the five sons, per the preferred consent of mode of distribution made on 29th December 2022 and filed by the Appellant;
iv. that the trial magistrate erred in failing to consider that the late Wachiye Wafula Kinyosi was no longer a beneficiary and ought to have been substituted before confirmation;
v. that the trial magistrate erred in confirming strangers as heirs/beneficiaries without considering the Appellant's submission that the deceased sold only 0.05 hectares (to Mourice Mukhebi Wakwabubi) and that the other purchasers bought their shares from the Respondent prior to the filing of this cause;
vi. that the Ruling and distribution were biased ab initio; and
vii. that the trial magistrate erred in allowing and including purchasers in the confirmation of grant when it was clear they had no proof of how they acquired their portions from the deceased.
11. The Appellant prays that the Ruling be set aside and the estate redistributed equally among the five houses. The Respondent maintains that the Appellant has never been an administrator, that the purchasers are genuine, and that the appeal should be dismissed.
D. The duty of a first appellate Court
12. This being a first appeal, my duty is that stated by the Court of Appeal for Eastern Africa in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123: this Court must reconsider the evidence, evaluate it afresh, and draw its own independent conclusions, giving due allowance for the trial Court's advantage in seeing and hearing the parties.
E. Analysis and determination
(a) Co-administration — Ground 1
13. On the record, the Appellant's position is more nuanced than either side's submissions allow. In March 2018 he was invited, along with ten others, to consent to a grant in the Respondent's favour alone, and he declined — his signature line on the Form 38 consent is blank. That refusal, followed by a formal objection he filed with Daniel Mukhebi in September 2018, led to the nullification of the sole grant that had issued in June 2018. What followed was not a return to the status quo but a fresh, joint Grant of Letters of Administration Intestate, made on 26th August 2020 and issued on 14th November 2022, naming the Appellant one of four administrators alongside the Respondent, Daniel Mukhebi and Electine Wanyama. From that date, the Appellant held office as a co-administrator in exactly the same capacity as the Respondent. The Respondent's submissions, both below and on this appeal, that the Appellant "has never been a co-administrator" are, with respect, incorrect, and the Ruling under appeal does not engage with this status at all. A Ruling confirming "the mode of distribution presented by the petition Sikuku Dickson Mutulile" without acknowledging that the objecting party held equal administrative office, and that two of the four administrators were excluded from the Respondent's own proposed schedule, discloses a material omission bearing directly on the proper exercise of the confirmation jurisdiction under Section 71 of the Law of Succession Act (Cap 160) and Rules 40 and 41 of the Probate and Administration Rules. Ground 1 succeeds to this extent.
(b) Purchasers — Grounds 2, 3, 5 and 7
14. Section 71(2) of the Law of Succession Act requires the Court, before confirming a grant, to be satisfied as to the identity of all persons beneficially entitled and their respective shares. The persons beneficially entitled to an intestate estate are defined by Sections 35 to 40 of the Act — the surviving spouse(s), children, and, in default, other specified next-of-kin. A purchaser of estate land, however long-standing his bargain, is not a person beneficially entitled in that sense, and the Certificate of Confirmation is not the instrument by which a contested contractual claim is adjudicated.
15. That is not, however, the end of the matter, because the Act does not leave a genuine purchaser without recourse. Section 82(b)(ii) makes it part of an administrator's ordinary duty to complete a contract for the sale of land which the deceased, or a person with authority to do so, had entered into. Read with Section 83, which requires debts and liabilities of the estate to be settled before the net distributable estate is arrived at, a genuine purchaser's claim to a specific, identified portion ranks ahead of the beneficiaries' shares, not among them: the correct course is to complete the transfer of that specific portion to the purchaser and exclude it from the pool available for distribution, not to list the purchaser as an heir in the Certificate of Confirmation. Properly classified, a genuine purchaser stands closer to a person entitled to completion of an equitable interest in specific land than to an ordinary unsecured creditor, and that status does not diminish his right merely because it is not the status of "beneficiary" the trial Court appears to have accorded him.
16. The whole of this protection, however, is conditional on the vendor having had authority to sell the specific portion in question at the time of the sale. Where the deceased himself sold land in his lifetime — and the evidence here includes at least two such transactions, a 1978 agreement for a plot sold to Maurice Barasa and an asserted 1976 sale to Leo Wanyonyi, besides the Appellant's own concession of a lifetime sale of 0.05 hectares to Mourice Mukhebi Wakwabubi — the purchaser's claim is unimpeachable and Section 82(b)(ii) applies without difficulty. Where a son sold a portion genuinely within his own allotted share, whether before or after the deceased's death, with the acquiescence of the wider family, the position should ordinarily be the same. But where a single administrator — without grant authority, or without his co-administrators' concurrence, or in respect of land outside his own house's allotted portion — purported to sell estate land, there is no valid contract binding the estate at all, whatever the buyer's good faith. That buyer's remedy lies personally against the individual who purported to sell to him, not against the estate or the other houses, and the portion in question remains part of the divisible estate.
17. I do not accept that length of occupation, by itself, answers this question. It was suggested in argument that since occupation by the various purchasers is not disputed, they should be taken to have acquired security of tenure through the passage of time. I would reject that reasoning on the facts of this estate. Adverse possession under Section 38 of the Limitation of Actions Act (Cap 22) requires possession held without, and against, the true owner's consent; it does not run where possession is permissive — for instance, where a purchaser has been let into occupation under a genuine agreement of sale and is simply awaiting completion once the succession is finalised, as appears to be the common understanding among the parties here. On that footing, the passage of time, of itself, neither perfects nor defeats any purchaser's claim. What matters is whether the vendor had authority to sell, of which continuous, unchallenged occupation is at most corroborative evidence — going to show that the wider family accepted the transaction as genuine when it was made — not an independent legal shield. The trial Court should also satisfy itself, for each transaction found to be genuine, whether consent of the Land Control Board was required and obtained. A controlled transaction concluded without such consent within the statutory period is void, in which case the purchaser's remedy against the vendor sounds only in restitution of the price paid, not in a proprietary claim to the land.
18. Applying this framework, the Ruling under appeal cannot stand. It records a bare conclusion that the purchasers are "genuine" without identifying which agreements were examined, without applying the vendor-authority distinction at all, and without engaging the Appellant's specific, sworn allegation that the Respondent himself sold part of the estate in 1993, years before any grant existed. Grounds 2, 5 and 7 succeed to this extent; Ground 3, for the more limited reason given concerning the status of the 29th December 2022 document, succeeds only insofar as the Ruling failed to grapple with the Appellant's status as a co-administrator and with the substance of his protest, not because that document was itself a binding order.
(c) The estates of the deceased's four predeceased sons — Ground 4, reconsidered
19. Ground 4, as pleaded, concerns only the late Wachiye Wafula Kinyosi, but the point it raises is of general application and, in my view, was not fully appreciated by either party below. Each of the deceased's five sons became entitled, on their father's death in 1984, to a vested one-fifth share of the net estate then existing. Where a son has since died, that vested share did not remain part of this estate to be distributed afresh among his children in this cause. It fell into his own estate, and can only now be transmitted onward to his own heirs through representation of that estate — a grant taken out, and a personal representative appointed, in respect of each such son who has since died, unless the whole of his portion was disposed of during his own lifetime, leaving nothing to represent.
20. On the material before me, this applies not only to the house of the late Wachiye Wafula Kinyosi, whose portion does appear to have been sold in its entirety in 1995 to a named purchaser — leaving, on that specific point, nothing outstanding to represent — but potentially also to the houses of the late Wanyama Wafula Mutulile and the late Joseph Nyongesa Wafula, and, tellingly, to the house of the late Khaemba Wafula Mutulile, the Appellant's own father. The Appellant's claim in this cause is, in law, a claim through his father's estate, not a claim in his own right, and it is subject to the same requirement of representation he invokes against the Wachiye house. Nothing in this judgment should be read as doubting the ultimate entitlement of any of these houses; the point is a procedural one, but it is not a technicality — a Certificate of Confirmation purporting to distribute all five shares directly among grandchildren and purchasers, without representation of four sons' intervening estates, is defective however fair the underlying arithmetic may be. This will need to be regularised on the rehearing I order below.
(d) The 1972 distribution and the net distributable estate
21. The Appellant's own proposed solution — an equal division of the whole 4.6 hectares among the five houses, as though nothing had happened to the land since 1984 — cannot be adopted either, and not merely as a matter of fairness to the purchasers. What falls to be distributed in any succession cause is the net estate the deceased actually owned at death, less liabilities. If the deceased sold portions in his lifetime and was paid for them, as the evidence here suggests he did on at least two occasions, those portions were never part of his net estate at all, whatever the position on the register. The Respondent's assertion that the deceased partitioned the whole parcel among his five sons in 1972 stands on a different footing, and could, if properly proved, justify respecting boundaries the family has observed for half a century — but the burden of proving it lies on the Respondent, who has not stated what acreage each son actually received. Without that evidence, the 1972 partition cannot be given effect as a finding of fact. It can only be invoked to justify whatever division a party now prefers, which is not the same thing. This is a matter for oral evidence and independent verification, not for affidavits and photocopied agreements alone.
(e) The alleged forgery of the consent to mode of sharing
22. The Appellant alleges that a consent to the mode of sharing filed in his name — apparently the document at record page 96 — bears a signature he never made, and that he in fact refused to sign it because the proposed distribution was unfavourable to his house. This is a serious allegation and, like any allegation of forgery, is not established by assertion in written submissions. It requires evidence, at minimum the Appellant's own sworn and tested account, and ordinarily comparison with admitted specimen signatures or a document examiner's opinion. But the more fundamental point is the one it exposes: a confirmation founded on a consent that was not truly given is founded on nothing. Where the beneficiaries are not agreed on the mode of distribution, the trial Court's task is to resolve that disagreement on evidence and to say, with reasons, why one proposal is preferred over another — not to record that one proposal appears more reasonable than a rival it does not name or examine. The Ruling under appeal does the latter, and that, too, cannot stand.
(f) Alleged bias — Ground 6
23. I do not find bias established. The record shows the trial Court intervening in the Appellant's favour on two occasions on procedural fairness grounds — nullifying the original 2018 grant, and later setting aside the May 2023 confirmation specifically because a co-administrator had not been notified — which sits uneasily with a suggestion of a closed or partial mind. The real and narrower complaint made out on this record is inadequate reasoning and a failure to engage with material evidence, addressed under the preceding grounds; that is a distinct defect from bias, and I dismiss Ground 6 as such.
(g) The Alfred Kundu Ndalila transaction
24. One transaction deserves particular mention because it illustrates why the vendor-authority inquiry above must be applied without regard to which party would benefit from the outcome. The Respondent's evidence is that on 18th November 2000 the Appellant's own mother, Tilia (Odilia) Nasimiyu Khaemba, and his brother, Joseph Mutulile Wachiye, sold a quarter-acre from the late Khaemba Wafula Mutulile's house to one Alfred Kundu Ndalila, and that the Appellant later destroyed the boundaries of and forcibly evicted that purchaser, a matter said to be substantiated by a chief's letter dated 5th June 2020. The Appellant, for his part, disputes the validity of that very sale, contending that the land sold did not form part of the suit parcel and that the sellers were not authorised to sell it.
25. I make no finding on this transaction; it is precisely the kind of dispute that requires oral evidence and cannot be resolved on affidavit. I note it only to make explicit what should in any event be self-evident: the Appellant has a direct personal interest in this particular sale being found invalid, since any land recovered from it would fall into the very house through which he claims. That is not a reason to disbelieve him, but it is a reason for the trial Court to subject this transaction to exactly the same scrutiny — no more indulgent and no less rigorous — as every other disputed sale on the list, including those the Appellant has challenged on behalf of other houses. The general directions on vendor authority given below apply to this transaction as they do to all the others.
(h) Neither party's proposed distribution can presently be adopted
26. Drawing the foregoing together: the Appellant is right that purchasers cannot be confirmed as beneficiaries, and right that a deceased beneficiary's share must be dealt with through representation of his own estate. The Respondent is right that the net distributable estate is not the whole 4.6 hectares, and right that genuine purchasers — whether they bought from the deceased in his lifetime or from a house dealing lawfully with its own allotted portion — cannot simply be disregarded. Neither side's proposed mode of distribution, as it stands, is sound, and this Court does not have before it the material needed to substitute one of its own: the acreages (if any) of the 1972 partition, the true extent of lifetime and subsequent sales, the current state of occupation on the ground, and proper representation of four intervening estates are all, on this record, unresolved.
F. Conclusion and disposition
27. For these reasons, the Ruling of 14th February 2024 and the Certificate of Confirmation of Grant issued pursuant to it cannot stand, and the appeal is allowed in part. I make the following orders:
(i) The Ruling of Hon. T. M. Olando, Principal Magistrate, delivered on 14th February 2024, and the consequent Certificate of Confirmation of Grant in Bungoma Chief Magistrate's Court Succession Cause No. 101 of 2018, are set aside.
(ii) The application for Confirmation of Grant is remitted to the Chief Magistrate's Court at Bungoma for hearing afresh, before a magistrate other than the Hon. T. M. Olando.
(iii) Before the summons is reheard, the estates of the late Khaemba Wafula Mutulile, the late Wanyama Wafula Mutulile, the late Joseph Nyongesa Wafula and the late Wafula Wachiye Kinyosi shall be represented by their respective personal representatives, or by such beneficiaries of each as the trial Court may direct, save that representation need not be taken out in respect of any son whose entire allotted portion is established to have been validly disposed of during his own lifetime.
(iv) All four persons named in the Grant of Letters of Administration Intestate issued on 14th November 2022 — Dickson Sikuku Mutulile, Peter Wanyonyi Khaemba, Daniel Mukhebi and Electine Wanyama — shall be treated as administrators on an equal footing.
(v) The trial Court shall take oral evidence on:
(a) whether and how the deceased partitioned the suit land among his five sons in 1972, and the acreage allotted to each — the burden of proof resting on who asserts it;
(b) the extent of the portions the deceased himself disposed of during his lifetime;
(c) for each disputed sale, whether the vendor had authority to sell the specific portion at the relevant time, distinguishing sales by the deceased, sales by a house of its own allotted portion, and sales by a single administrator or heir without authority or concurrence;
(d) the Appellant's allegation that the Respondent sold estate land without authority in or about 1993, and any comparable later transaction concluded directly by the Respondent, including but not limited to any 2016 or other transaction that may be raised in evidence;
(e) the validity of the 18th November 2000 sale of a portion of the late Khaemba Wafula Mutulile's house to Alfred Kundu Ndalila, and the allegation that the Appellant subsequently destroyed boundaries and evicted that purchaser, this transaction to be tested to the same standard as every other disputed sale notwithstanding the Appellant's personal interest in its outcome; and
(f) the Appellant's allegation that his signature on the consent to the mode of sharing filed in his name was forged.
(vi) The trial Court shall commission
(a) a report from a licensed surveyor or the Land Registrar, Bungoma, establishing the current occupation, boundaries and acreage of every portion of the suit land, including portions occupied by purchasers; and
(b) a report from the area Chief identifying who is presently in occupation of each such portion and since when, to assist the Court in determining the extent and genuineness of each purchaser's possession.
(vii) Any purchaser found to have acquired his or her portion from a vendor who had authority to sell shall be entitled to completion of that contract under Section 82(b)(ii) of the Law of Succession Act, ranking ahead of the distributable estate under Section 83, and that portion shall be excised from the schedule accordingly; such a purchaser shall not be listed as a beneficiary. Any purchaser found to have acquired his or her portion from a vendor without such authority shall have no claim against the estate, and that portion shall remain part of the divisible estate; that purchaser's remedy, if any, lies personally against the vendor in a Court of competent jurisdiction.
(viii) Each party shall bear his own costs of this appeal. Costs in the Court below shall abide the outcome of the fresh hearing.
28. It is so ordered.
In the presence of:
N/Afor the Appellant
N/A for the Respondents
Court Assistant: Irene Chelang’at