A. INTRODUCTION
1. This appeal arises from the ruling of the Principal Magistrate’s Court at Oyugis (Hon. C. Chepkoech, RM) delivered on 24th October 2024 in Succession Cause No. 15 of 2013.
2. The Appellant, dissatisfied with the dismissal of his objection to the grant, challenges both the factual findings and the application of law by the trial court.
3. The appeal was canvassed by way of written and oral submissions from learned counsel, Mr. Osoro for the Appellant and M/s Kisaka for the Respondent.
B. BACKGROUND
4. The dispute concerns the estate of the late Ondiek Owuor, a 16 year old boy who died in 1974, unmarried and without issue.
5. The estate property, i.e Land Parcel No. KABONDO/KODUMO EAST/369, remained registered in the deceased's name.
6. The Respondent petitioned for letters of administration, initially claiming to be a son, later he filed an affidavit saying he was a nephew to deceased and that the description as a son was an error .
7. The Appellant, a step-brother of the deceased, objected to the grant on several grounds including:
i. The deceased died before the Law of Succession Act commenced;
ii. The estate reverted to the father under customary law;
iii. The Respondent obtained the grant through misrepresentation.
8. The trial court dismissed the objection, prompting the present appeal.
C. ISSUES FOR DETERMINATION
9. This is a first appellate court whose role is to re-evaluate the evidence on record bearing in mind that it neither saw nor heard the witnesses during their testimony in court as was held in the case of Sielle vs Associated motors EA 1968 EA 123.
10. I have carefully considered the objection the reply , the evidence adduced by both sides and the able submissions filed herein by both parties . The following issues arise from the record and submissions:
i. What law governs the estate of the deceased?
ii. Did the estate revert to the father under customary law?
iii. Was there a valid inter vivos distribution?
iv. Was the grant obtained through material misrepresentation?
v. Did the trial court err in dismissing the objection?
D. APPLICABLE LAW
(i) Law governing the estate
11. Section 2(2) of the Law of Succession Act states:
‘’The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death…”
12. The deceased died intestate in 1974, and he was the registered proprietor of land parcel Kodumo East /369 .
E. ANALYSIS
Did the estate revert to the father of deceased ?
12. The Appellant argues that under Luo customary law, a minor who dies unmarried and without issue has his property revert to the father.
13. This is supported by customary law authorities cited by the Appellant and consistent with judicial recognition of customary succession under Section 2(2).
14. However, land parcel no. Kodumo East / 369 is still registered in the name of deceased and his father did not file a succession cause to have the land revert back to him
15. Registration confers ownership, and in the absence of lawful transmission, the land remains part of the estate of the deceased and is subject t to law of succession .
Was the alleged inter vivos distribution valid
16. The Appellant cites a 1992 alleged distribution of the property of the deceased herein by their deceased father before an Assistant Chief. In the case of In re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] KEHC 944 (KLR)
it as held that ‘’For gifts inter vivos , the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of. Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. ‘’
17. For a valid inter vivos gift of land, the law requires:
a) Written transfer Registration or completed transfer.
b) Compliance with statutory requirements.
18. The absence of documentary evidence of transfer invalidates the alleged distribution.
19. Section 45 of the Law of Succession Act prohibits intermeddling with estate property.
20. The deceased’s father’s actions if any in the absence a grant, bordered on intermeddling with the property of the deceased person herein .
Did the Respondent misrepresent material facts?
21. Under Section 76 of the Law of Succession Act, a grant may be revoked where the it was obtained fraudulently by the making of a false statement among other reasons.
22. It is undisputed that the Respondent described himself as a son to deceased in the petition while in actual sense he was his nephew as the deceased and his father Norbatus Otieno were brothers . The respondent said he corrected this by way of his relying affidavit dated 28th January 2021 filed in court. I have seen the said affidavit . this court taken judicial notice that in most Kenyan Communities a brother to your is referred to as your father is your father and when translated into English language, he is an uncle . This is a mistake which does not go to the substance of the matter and in any event, there was no evidence that the misdescription prejudiced the proceedings. I find that the same was a clerical mistake which is excusable under Article 159 (2) (d) of the Constitution of Kenya which enjoins the courts to determine cases based on the substance but not technicalities of procedure .
Did the trial court err in applying Section 39 of the Law of Succession Act?
23. The Appellant argues that Section 39 was misapplied, which prioritizes beneficiaries in the absence of a spouse or child.
24. At the time of filing, both parents of deceased herein were not alive , and the estate had not been lawfully transmitted. The respondent is a nephew to the deceased being a son to his brother from the same mother. The appellant is a step brother to the deceased from another mother .
(1) Section 39 of the Law of Succession Act provides that ;- Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority— (a) father; or if dead
(b) mother; or if dead
(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
(d) half-brothers and half-sisters and any child or children of deceased half-brothers and half sisters, in equal shares; or if none
(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
25. In re Estate of Mutea Nguchine (Deceased) [2023] KEHC 21228 (KLR)
it was held that ;-‘’ From the foregoing provision, the Applicant and the Respondent who are nephews of the deceased are beneficiaries to the estate since the deceased’s parents, sisters and brothers too having died. ‘’The respondent herein is a child to a brother to deceased and thus he his brothers Mark Odhiambo , Maurice Okoth and all thE grand children of Andege Miseda rank in priority over the appellant in the order of consanguinity under Section 39 (1) (c) of the Law of Succession Act. The appellant being a step brother to deceased comes under clause (d) which is below the ranking of the respondent .
26. The court thus correctly applied Section 39 of the Law of Succession Act.
27. Upon re-evaluation of evidence on record it is clear that :
a. The alleged customary reversion was not formalized;
b. The alleged inter vivos distribution was not valid;
c. The Respondent qualifies as a beneficiary under Section 39;
c. The trial court properly exercised its discretion.
F. FINDINGS
28. The court makes the following findings:
i. The estate is governed by customary law but administered under the Law of Succession Act.
ii. No valid legal reversion or transfer to the father was substantiated.
iii. The alleged inter vivos distribution is unenforceable.
iv. The Respondent’s misdescription does not invalidate the proceedings.
v. The trial court correctly dismissed the objection.
G. DISPOSITION
29. The court orders as follows:
a. The appeal is hereby dismissed
b. The ruling of the Principal Magistrate delivered on 24th October 2024 is upheld;
c. The grant issued in Oyugis Succession Cause No. 15 of 2013 remains valid;
d. Each party shall bear their own costs.
e. Mention on 23.4.26 before Oyugis Court
30. Orders accordingly.
T.A. ODERA
JUDGE
21.4.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 21ST DAY OF APRIL 2026, IN THE PRESENCE OF MISS KISAKA FOR THE RESPONDENT . N/A FOR APPELLANT CA - LUNUS SANA
1. This appeal arises from the ruling of the Principal Magistrate’s Court at Oyugis (Hon. C. Chepkoech, RM) delivered on 24th October 2024 in Succession Cause No. 15 of 2013.
2. The Appellant, dissatisfied with the dismissal of his objection to the grant, challenges both the factual findings and the application of law by the trial court.
3. The appeal was canvassed by way of written and oral submissions from learned counsel, Mr. Osoro for the Appellant and M/s Kisaka for the Respondent.
B. BACKGROUND
4. The dispute concerns the estate of the late Ondiek Owuor, a 16 year old boy who died in 1974, unmarried and without issue.
5. The estate property, i.e Land Parcel No. KABONDO/KODUMO EAST/369, remained registered in the deceased's name.
6. The Respondent petitioned for letters of administration, initially claiming to be a son, later he filed an affidavit saying he was a nephew to deceased and that the description as a son was an error .
7. The Appellant, a step-brother of the deceased, objected to the grant on several grounds including:
i. The deceased died before the Law of Succession Act commenced;
ii. The estate reverted to the father under customary law;
iii. The Respondent obtained the grant through misrepresentation.
8. The trial court dismissed the objection, prompting the present appeal.
C. ISSUES FOR DETERMINATION
9. This is a first appellate court whose role is to re-evaluate the evidence on record bearing in mind that it neither saw nor heard the witnesses during their testimony in court as was held in the case of Sielle vs Associated motors EA 1968 EA 123.
10. I have carefully considered the objection the reply , the evidence adduced by both sides and the able submissions filed herein by both parties . The following issues arise from the record and submissions:
i. What law governs the estate of the deceased?
ii. Did the estate revert to the father under customary law?
iii. Was there a valid inter vivos distribution?
iv. Was the grant obtained through material misrepresentation?
v. Did the trial court err in dismissing the objection?
D. APPLICABLE LAW
(i) Law governing the estate
11. Section 2(2) of the Law of Succession Act states:
‘’The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death…”
12. The deceased died intestate in 1974, and he was the registered proprietor of land parcel Kodumo East /369 .
E. ANALYSIS
Did the estate revert to the father of deceased ?
12. The Appellant argues that under Luo customary law, a minor who dies unmarried and without issue has his property revert to the father.
13. This is supported by customary law authorities cited by the Appellant and consistent with judicial recognition of customary succession under Section 2(2).
14. However, land parcel no. Kodumo East / 369 is still registered in the name of deceased and his father did not file a succession cause to have the land revert back to him
15. Registration confers ownership, and in the absence of lawful transmission, the land remains part of the estate of the deceased and is subject t to law of succession .
Was the alleged inter vivos distribution valid
16. The Appellant cites a 1992 alleged distribution of the property of the deceased herein by their deceased father before an Assistant Chief. In the case of In re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] KEHC 944 (KLR)
it as held that ‘’For gifts inter vivos , the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of. Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid. In this regard it is not necessary for the donee to give express acceptance, and acceptance of a gift is presumed until or unless dissent or disclaimer is signified by the donee. ‘’
17. For a valid inter vivos gift of land, the law requires:
a) Written transfer Registration or completed transfer.
b) Compliance with statutory requirements.
18. The absence of documentary evidence of transfer invalidates the alleged distribution.
19. Section 45 of the Law of Succession Act prohibits intermeddling with estate property.
20. The deceased’s father’s actions if any in the absence a grant, bordered on intermeddling with the property of the deceased person herein .
Did the Respondent misrepresent material facts?
21. Under Section 76 of the Law of Succession Act, a grant may be revoked where the it was obtained fraudulently by the making of a false statement among other reasons.
22. It is undisputed that the Respondent described himself as a son to deceased in the petition while in actual sense he was his nephew as the deceased and his father Norbatus Otieno were brothers . The respondent said he corrected this by way of his relying affidavit dated 28th January 2021 filed in court. I have seen the said affidavit . this court taken judicial notice that in most Kenyan Communities a brother to your is referred to as your father is your father and when translated into English language, he is an uncle . This is a mistake which does not go to the substance of the matter and in any event, there was no evidence that the misdescription prejudiced the proceedings. I find that the same was a clerical mistake which is excusable under Article 159 (2) (d) of the Constitution of Kenya which enjoins the courts to determine cases based on the substance but not technicalities of procedure .
Did the trial court err in applying Section 39 of the Law of Succession Act?
23. The Appellant argues that Section 39 was misapplied, which prioritizes beneficiaries in the absence of a spouse or child.
24. At the time of filing, both parents of deceased herein were not alive , and the estate had not been lawfully transmitted. The respondent is a nephew to the deceased being a son to his brother from the same mother. The appellant is a step brother to the deceased from another mother .
(1) Section 39 of the Law of Succession Act provides that ;- Where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority— (a) father; or if dead
(b) mother; or if dead
(c) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none
(d) half-brothers and half-sisters and any child or children of deceased half-brothers and half sisters, in equal shares; or if none
(e) the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.
25. In re Estate of Mutea Nguchine (Deceased) [2023] KEHC 21228 (KLR)
it was held that ;-‘’ From the foregoing provision, the Applicant and the Respondent who are nephews of the deceased are beneficiaries to the estate since the deceased’s parents, sisters and brothers too having died. ‘’The respondent herein is a child to a brother to deceased and thus he his brothers Mark Odhiambo , Maurice Okoth and all thE grand children of Andege Miseda rank in priority over the appellant in the order of consanguinity under Section 39 (1) (c) of the Law of Succession Act. The appellant being a step brother to deceased comes under clause (d) which is below the ranking of the respondent .
26. The court thus correctly applied Section 39 of the Law of Succession Act.
27. Upon re-evaluation of evidence on record it is clear that :
a. The alleged customary reversion was not formalized;
b. The alleged inter vivos distribution was not valid;
c. The Respondent qualifies as a beneficiary under Section 39;
c. The trial court properly exercised its discretion.
F. FINDINGS
28. The court makes the following findings:
i. The estate is governed by customary law but administered under the Law of Succession Act.
ii. No valid legal reversion or transfer to the father was substantiated.
iii. The alleged inter vivos distribution is unenforceable.
iv. The Respondent’s misdescription does not invalidate the proceedings.
v. The trial court correctly dismissed the objection.
G. DISPOSITION
29. The court orders as follows:
a. The appeal is hereby dismissed
b. The ruling of the Principal Magistrate delivered on 24th October 2024 is upheld;
c. The grant issued in Oyugis Succession Cause No. 15 of 2013 remains valid;
d. Each party shall bear their own costs.
e. Mention on 23.4.26 before Oyugis Court
30. Orders accordingly.
T.A. ODERA
JUDGE
21.4.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS 21ST DAY OF APRIL 2026, IN THE PRESENCE OF MISS KISAKA FOR THE RESPONDENT . N/A FOR APPELLANT CA - LUNUS SANA