REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HIGHCOURT FAMILY APPEAL NOE002 OF 2025
RE ESTATE OF FREDRICK NDUSO MWANZINA ( DECEASED)
SCOLLAH MUENI MUTUA
SIMON NTHANGAI NDUSO..................................................................................................................APPELLANTS
VS
BEATRICE JUMA
ABEDNEGO JUMA..............................................................................................................................RESPONDENTS
(Appeal from the Ruling of Elizabeth Kemei (RM) delivered on 14 th January 2025 in Makueni MCC Succession Cause no E617 of 2022)
JUDGMENT
Background
Frederick Nduso Mwanzina died on 1st August 1988 at Kilala in Machakos.
From the record before me, Succession Cause No. 172 of 1996 was filed at the High Court of Kenya at Nairobi by his son Rafael Muiwa Nduso and widow Rose Nduku Nduso. According to Form P&A 5 dated 3rd September 1995, he was survived by his widow Rose Nduku Nduso and his children:
1. Polycarp Mwalyo Nduso
2. Scholastica Mueni Mutua
3. Rafael Muiwa Nduso
4. Leah Kethi Ngumuta
5. Simon Ntangai Nduso
6. Nicholas Mwangangi Nduso
7. Gideon Mwanzina Nduso
8. Catherine Nzula Nduso
9. John Mukuva Nduso
The Estate
His estate was indicated to be:
1. Ukia/Kilala/26 – 5 hectares
2. Ukia/Kilala/39 – 0.5 hectares
GRANT OF LETTERS OF ADMINISTRATION
It was indicated that the consent was given by Polycarp, Scholastica, Leah and Simon. The other children, Nicholas, Gideon, Catherine and John, were minors. A Grant of Letters of Administration was issued to the two administrators on 11th April 1996. There is a consent dated 27th July 2022 where all the beneficiaries consented to the grant being issued to the two applicants.
OBJECTION
An objection was filed by Beatrice Juma and Abednego Juma.
According to the objectors, Title Nos. Ukia/Kilala/26 and Ukia/Kilala/39 belonged to one Gideon Mwanzina, who is deceased, and that Gideon Mwanzina was husband to three wives, namely Priscilla Kalulu, Teta Mwanzina and Ngali Mwanzina. Frederick Nduso Mwanzina was the son of Priscilla Kalulu. Teta Mwanzina gave birth to David James and Ngali Mwanzina gave birth to Katanu and Nzongulu.
The objectors stated that when the land was adjudicated, Gideon Mwanzina had the properties registered in both his name and the name of Frederick Nduso, his 1 st born son. That before he died, Gideon Mwanzina had subdivided his land among his three wives. That after his death he died, Frederick Nduso proceeded to change the name in the registry to remove the name of Gideon Mwanzina and retain his own name, making it appear as if he was the registered proprietor of the two parcels of land.
According to the objectors, the property was held by Gideon Mwanzina and Frederick Nduso in trust for the whole family of Gideon Mwanzina.
SUMMONS FOR REVOCATION OF GRANT
A Summons for Revocation of Grant dated 11th September 2024 was filed seeking that the grant made on 9th August 2023 and confirmed on 18th March 2024 be revoked or annulled as the same was obtained fraudulently by concealment of material facts and false statements.
The main grounds were that the grant was confirmed without considering the interests of Beatrice Juma and Abednego Juma, the objectors herein, in the estate of Frederick Mwanzina, in that Parcel No. Ukia/Kilala/26 and Parcel No. Ukia/Kilala/39. That the parcels of land in contention were registered in the names of Gideon Mwanzina, who was the father to the deceased, and Frederick Mwanzina Nduso, who was the son, to hold in trust for the family. That after the demise of Gideon, his name was irregularly removed from the title document by Frederick Nduso, locking out the interest of the applicants.
In the summons for revocation of grant, it was stated that Gideon Mwanzina had settled on the land with his three wives, one of whom was the mother of the deceased herein.
RULING OF THE TRIAL COURT
The learned trial magistrate heard the application and found that it had merit and proceeded to revoke the grant under Section 76 of the Law of Succession Act.The learned magistrate said:
“The applicants have presented before this court copies of two green cards over the land parcels in contention. Upon interrogation of the said cards, I take note that the initial entry on the proprietorship section for both cards dated 22nd May 1979 indicate the names Frederick Nduso Gideon Mwanzina. For Parcel No. Ukia/Kilala/39, the same appears struck out by hand and on 11th June 1985 the name of the deceased herein, Frederick Nduso, was entered in the proprietorship section.As for Parcel No. Ukia/Kilala/26, the entry remains though the same were similarly subsequently registered in the name of Frederick Nduso.
It is not lost to the court that the respondents have presented a sale agreement dated 13th November 1968 indicating that the deceased herein was the land purchaser. However, bearing in mind that the father to the deceased was named Gideon Mwanzina, it was without a doubt difficult to tell whether the names as indicated belong to the deceased herein only or whether they are two separate names to include the father to the deceased herein.”
The learned trial magistrate stated further that:
they raise substantial questions as to the matters of ownership of the said parcels as well as whether there was concealment of information leading up to the issuance of the grant herein.
The court concluded:
“It is therefore imperative in my considered opinion that the questions be addressed and/or clarified by both parties. This can only be done so by giving each party their day in court.”
THE APPEAL
The administrators were aggrieved by that ruling and filed a Memorandum of Appeal.
GROUNDS OF APPEAL
1. That the learned magistrate had in law and in fact misdirected herself in revoking the Certificate of Confirmation of Grant issued on 18th March 2024.
2. That the learned magistrate had in law and fact misdirected herself in failing to consider the issue of jurisdiction raised by the appellants at the lower court.
3. That the learned magistrate had in law and fact misdirected herself by failing to consider the evidence tendered by the appellants at the lower court.
4. That the learned magistrate had in law and fact misdirected herself in failing to consider the applicable case law availed by the appellants.
5. That the learned magistrate had in law and in fact failed to take into consideration the relevant provisions of the law.
The appellants sought that that the ruling delivered on 14th January 2025 and all subsequent orders and decree be set aside. That the Certificate of Confirmation of Grant issued on 18th March 2024 be reinstated and that the costs of the appeal and the lower court be paid to the appellants by the respondents.
SUBMISSIONS
Parties were given time to file written submissions and each counsel had the opportunity to highlight their submissions.
For the appellants Mr. Mutuku submitted that their submissions were dated 12 th May 2025.
Appellants’ Submissions
Counsel for the appellants submitted that this Court, as a first appellate court, is required to re-evaluate the evidence that was before the trial court, analyse it and arrive at its own independent conclusion. Reliance was placed on Selle v Associated Motor Boat Company Limited [1968] EA 123 , where the court held that:
“The appellate court is called upon to evaluate the trial court's evidence, analyse the same and come up with its own conclusion, but in so doing, the court ought to take into account that it never had an opportunity of seeing nor hearing the witnesses.”
On whether the learned trial magistrate erred in law and fact by revoking the certificate of confirmation of grant issued on 18 March 2024
It was submitted that the trial court ought to have been guided by section 76 of the Law of Succession Act.
The appellants relied on Re Estate of Kisigwa Asuga Asuga (Deceased), H.C. P&A No. 158 of 2000 [2016] eKLR , where the court stated:
“... power to revoke a grant is discretionary. Power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke a grant. And when a court is called upon to exercise it, it must take into account interests of all beneficiaries entitled to the deceased estate and ensure that the action taken will be in the interest of justice.”
It was submitted that the respondents’ contention that the two properties of the estate were initially registered in the names of Gideon Mwanzina and the deceased, Frederick Nduso Mwanzina, was factually incorrect. The appellants submitted that they produced before the trial court the green cards in respect of the properties to show that the properties were registered only in the name of Frederick Nduso Gideon Mwanzina. The appellants further submitted that they produced agreements for sale showing that the deceased had purchased the properties.
It was submitted that the trial court ought to have found that the summons for revocation was in reality a claim founded on customary trust disguised as a summons for revocation of grant. The appellants relied on Re Estate of Raphael Kwama Shituku (Deceased), H.C. P&A No. 73 of 2005 [2016] eKLR , where the court stated:
“The objectors’ claim being founded on trust or customary trust coupled with prolonged occupation and use of land, this in my view is not a matter within the jurisdiction of this court. The objectors claim that the land the subject of this cause was owned by their father and that she therefore has an interest over it cannot be entertained by this court at this point in time. For the foregoing reasons, the summons dated 19 June 2011 is declined and dismissed. Each party to bear its own costs.”
Further reliance was placed on Re Estate of James Muiruri Kamau (Deceased), H.C. P&A No. 1 of 2002 [2018] eKLR , where the court stated:
“To that extent, if the applicants held that the said title was held in trust for them, it would be incumbent upon them to mount a legal challenge against the estate of the deceased through the administrator of the estate. In essence, what this gives rise to is a position of competing interests in land. The question arises as to whether these grounds suffice to warrant the revocation of a grant and whether this court has the necessary jurisdiction to entertain a suit seeking determination of a question of land held in trust. From the foregoing, the applicants’ application seeks orders that are not available under section 76 of the Law of Succession Act that provides for revocation of grant. I find no merit in the summons for revocation dated 7th May 2012 and I dismiss the same.”
It was submitted that the foregoing authorities demonstrate that the standards for revocation of a grant had not been met in the present case and that the trial court misdirected itself.
On whether the learned trial magistrate erred in law and fact by failing to consider the issue of jurisdiction raised by the appellants
It was submitted that the appellants adduced evidence to show that the first registration of the suit properties was effected in 1979 in the sole name of their father and that title deeds were issued in 1985.
It was further submitted that the respondents never raised any issue regarding ownership of the properties during the lifetime of the registered proprietor and only raised the issue after his death.
The appellants submitted that the summons for revocation was an attempt to litigate over ownership of the properties and raise issues of customary trust. According to the appellants, such issues fall within the jurisdiction of the Environment and Land Court and not the succession court.
The appellants relied on Re Estate of Raphael Shituku (Deceased) [2016] eKLR and In Re Estate of Richard Karanja Javan [2014] eKLR , where the court stated:
“It is not in dispute that the deceased was the registered proprietor of the property in question. His registration as such was not disputed until after his death. The registration in question was under the Registered Land Act, Cap 300 Laws of Kenya (now repealed). It was a first registration. By dint of section 143 of the Registered Land Act, the said registration cannot be faulted. There is judicial authority on this in Obiero v Opiyo & Others [1972] EA 227 where it was held that a first registration is indefeasible. Even if fraud is proved. There is therefore no merit in the applicant’s case. Even if she had a case that there existed a trust in her mother’s favour, the same ought to be established in a suit before the Environment and Land Court.”
The appellants also relied on Re Estate of James Muiruri Kamau (Deceased) [2018] eKLR , cited in Re Estate of Kamani Kinuthia for the proposition that succession proceedings are not the appropriate forum for challenging the deceased’s title to property, and that a claim founded on trust ought to be the subject of separate proceedings in which the alleged trust must first be proved.
On whether the learned trial magistrate erred in law and fact by failing to consider the evidence tendered by the appellants
It was submitted that the appellants produced before the trial court:
• A letter from the Chief dated 4 July 2022 indicating the dependants and beneficiaries of the deceased and showing that the respondents were not beneficiaries as they were not children of the deceased.
• Green cards in respect of the properties showing that only one entry was made in 1979 in the name of Frederick Nduso Gideon Mwanzina.
• Documents showing that the deceased had adopted the baptismal name of his father, Gideon, and used the names Frederick Nduso Gideon Mwanzina and Frederick Nduso Mwanzina interchangeably.
• The deceased’s national identity card bearing the name Frederick Nduso Mwanzina.
• A marriage certificate indicating the name Frederick Nduso and identifying his father as Gideon Mwanzina.
• A job card from the Kenya Ports Authority bearing the name Frederick N. Mwanzina.
• A Kenya Commercial Bank savings slip dated 29 July 1988 indicating the name Frederick Nduso Gideon Mwanzina.
• Employment records dated 25 April 1983 and 4 May 1988 from the Kenya Ports Authority showing that the deceased used the names Frederick Dusso G. Mwanzina and Nduso G. Mwanzina, the letter “G” being an abbreviation for Gideon.
• A sale agreement dated 13 November 1968 showing that the deceased purchased the properties for value.
• A letter dated 8 February 1977 from the Office of the President indicating that the deceased had requested a loan to purchase Title No. Ukia/Kilala/26 and that title deeds had not yet been issued.
• Documents showing that Ukia/Kilala/26 was registered in the name of Frederick Nduso G. Mwanzina.
• Receipts dated 14 May 1974 and 16 May 1974 relating to proceedings before the Land Adjudication Committee.
• A certificate of boundary dated 20 May 1983.
• A Land Control Board consent dated June 1985 approving correction of the name from Frederick Nduso Gideon Mwanzina to Frederick Nduso Mwanzina.
It was submitted that had the trial court properly considered the foregoing documents, it would have found that Frederick Nduso Gideon Mwanzina and Frederick Nduso Mwanzina were one and the same person and that the changes made in 1985 were intended to align the registration particulars with the deceased’s national identity card.
It was therefore submitted that the appeal is merited and ought to be allowed, there having been no evidence to justify the revocation of the grant.
Respondents’ Submissions
For the respondents the submissions are dated 21 st October 2025 counsel highlighted them.
Ms. Mutua reminded the court that on a first appeal the duty of the court is as was stated by the Court of Appeal in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Company Advocates [2013] eKLR: The court stated inter alia
“We are reminded of our primary role as a first appellate court, namely to re evaluate, reassess and re analyse the extracts on record and then determine whether the conclusions reached by the learned judge are to stand or not and give reasons either way.”
In the submissions the respondents gave background to the appeal and stated that the deceased Frederick Nduso Mwanzina was the first-born son of Gideon Mwanzina who had three wives. That the respondents are the grandchildren of Gideon Mwanzina.
That Gideon Mwanzina acquired the parcels of land known as Ukia/Kilala/26 and Ukia/Kilala/39 which were registered in his name and the name of the deceased Frederick Nduso Mwanzina to hold in trust for other beneficiaries. That the respondents were been born and raised in the said parcels of land and were shocked to discover that the appellants petitioned for Letters of Administration which were subsequently confirmed without disclosing that the land was the subject of a customary trust.
That the respondents filed their summons for revocation of grant on the ground that the grant was obtained fraudulently through misrepresentation and concealment of material facts. That the appellants failed to disclose the rightful heirs to the estate and excluded the respondents. That the great issue is that the respondents contend that the appellants or their predecessors altered land title deeds fraudulently by removing the name of Gideon Mwanzina, the father of the deceased, from the two titles without the knowledge or consent of the family with the intent to disinherit the other family members.
According to the respondents, the issues for determination are:
1. Whether the trial court ignored the issue of jurisdiction.
2. Whether the court had the requisite jurisdiction to revoke the grant.
3. Whether the respondents disclosed sufficient reasons for revocation of the grant.
4. What orders should issue .
On the first issue, it is submitted that the issue of trust raised by the respondents can only be determined in the Environment and Land Court. That the probate court can only distribute assets that are undisputedly owned by the deceased. It is submitted that the appellants failed to disclose to the trial court the existence of a customary trust. It is further submitted that the respondents did not invite the court to establish the existence of the said trust but only to establish that there was material non-disclosure of the existence of the customary trust which rendered the grant defective and a subject for revocation. The respondents rely on In the Estate of Eliakim Shibuya Musa (Deceased) [2023] eKLR. It is submitted that the court did not ignore the issue of jurisdiction but only found that there was reason for revocation of the grant.
On whether there was sufficient reason for revocation, the respondents rely on Section 76 of the Law of Succession Act and the case of Albert Imbuga Kisigwa v Rachel Kavai Kisigwa [2016] eKLR.
It is submitted that the letter from the Chief is proof of the relationship between the objectors and the deceased. That the petitioners’ deliberate omission of critical beneficiaries from their application is tantamount to an attempt to mislead the court regarding the true beneficiaries.
The court is also referred to Section 51(2) of the Act requiring the applicant to disclose all relevant information regarding the estate of the deceased.
The respondents further rely on In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR on the application of Section 76 of the Law of Succession Act to the facts of this case.In that matter the court acknowledged that the jurisdiction to determine the validity or enforceability of sale agreements between the deceased and the applicants lay with the ELC Court and proceeded to state as follows:
"But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court to make an informed decision on distribution of the estate. Needless to state that in any judicial proceeding, parties must make full disclosure to the court of all material facts to the case, including succession cases. This general rule of law emphasises utmost good faith from parties who come before the court. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure streams of justice. Such must immediately be subjected to serious reverse osmosis to purify the streams of justice if society is to be accordingly regulated by law."
The court proceeded to emphasise the role of personal representatives, which is to fulfil the obligations and liabilities of the estate or to realise any right or benefit thereof for the estate of the deceased.
The respondent also relies on Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules.
The respondents further rely on Re Estate of Haji Mohammed Bou Saeed (Deceased) [2018] eKLR, where the court stated that its primary duty is to protect the interests of all beneficiaries and ensure that the estate is administered fairly and equitably .
As to the orders that can issue, the court was referred to the Court of Appeal decision in Matei Julius Mulili Ndeti & Another v Ndeti & Another, KECA 150 (KLR), where the court, faced with a similar issue, revoked the grant but directed the issue of ownership to the proper forum. The court stated:
"In view of the facts that the gist of the appellant's case relates to ownership of the suit properties, we find that the right forum for the dispute is the ELC. The ELC is seized with the requisite jurisdiction to determine all the issues raised by the appellant herein as pertains to ownership of the suit properties and there is already a suit pending before that court on the issue. Once the ELC renders itself on the question of ownership, the High Court can be moved if there is any outstanding or unresolved question of succession."
The respondent also relies on Rule 41(3) of the Probate and Administration Rules, which provides for the stay of distribution of any property in respect of which there may be a dispute.
The court is urged to find that this appeal lacks merit and to dismiss it
Analysis and Determination
I have carefully considered the submissions on record, the evidence placed before the Trial Court and the ruling of the learned trial magistrate.
The issue for determination is whether the appeal has any merit.
To determine this issue , this court is required to re – asses the evidence on record and draw its own conclusions – as guided by Selle and Abok James cases above.
It is not in dispute that the deceased died – and the properties Ukia/ Kilala 26 and 39 were in his name at the material time. It is not also in dispute that before 1985, the two tittles contained the names Fredrick Nduso Gedion Mwanzina. It is also not disputed that it is indeed Fredrick Nduso who had the name Gedion Mwanzina removed – according to the appellants he did so so as to align his properties with the names as they appeared in his National ID.
This is where the parties disputed. The respondents have taken the position that Fredrick did that to obliterate the fact that Gedion Mwanzina, his father, had registered the entire family Land in both his – Gedeon’s and Fredrick’s (his first born son) in trust for his family which comprised of three wives and their children –That the 2 held the property in trust for the entire family.
It is on this basis that they filed their objection to the issue of grant dated 14/8/2023, in response to that objection, vide their joint affidavit sworn on 25/8/2023. The appellants deponed that the objectors were their cousins, and that though in their view, they were not entitled to the estate of their father – their claim to a share of the estate could only be brought for “determination during the distribution of the estate of the deceased which could only arise 6 months from the date of appointment of the personal representatives” .
From their own deposition, the appellants recognize that he respondents are their cousins - They also recognize that the respondents could raise their claim to the share of the estate at the time of distribution.
Having made that concession , then they had a duty to make the respondents aware of the fact that the application i.e summons for confirmation of grant, had been filed – so that if they had any issues they could raise them then. Having recognized that there was an objection – which was not heard – as far as I could tell from the record – and which appears to have been held in abeyance pending the hearing of the summons for confirmation of grant – the appellants were obligated to inform the objectors/ respondents of that earlier. I say this relying entirely on their response to the objection to the issuance of the grant. That is what good faith is about.
Coming to the Summons for Revocation of grant and the Ruling of Hon Kemei RM, it is noteworthy that the issue of jurisdiction would arise – if the learned trial Magistrate proceeded to make a determination whether or not there was a customary trust in existence as alleged by the respondents.
I have read the Ruling – and clearly – there is no determination by the trial court as to the existence of a customary trust.
I agree with the submissions that this indeed would be a matter for determination by the ELC Court, and not the Probate Court. Hence – it is not correct that the trial court ignored the question of jurisdiction – the trial court rightly avoided to deal with the issue that would have brought its jurisdiction as a probate court in question.
Did the trial court ignore the evidence? To answer this question, I must find the answer to the 1 st question the appellants must answer to themselves: this evidence they were bringing , what was it intended to prove? Their answer? They intended to prove that the two titles were registered in the name of the deceased herein, and that he acquired them through a legitimate purchase - this was in response to the claim by the respondents that that was not the case.
Evidently – the real issue then is whether or not the titles, the assets of the estate herein were originally registered in the names of Gedion Mwanzina and Fredrick Nduso and whether, the registration was in trust for the entire family of Gedion Mwanzina, and whether, Fredrick Nduso had fraudulently and irregularly removed the name of his father from the tittle deeds to create the impression that he was the sole proprietor of those two tittles.
These were not issues to be determined by the learned trial magistrate as a P&A Court – they are clearly issues for the Land Court. In her view the issues required that each party be heard/have their day in Court, and that the issues required to be determined before the estate could be distributed.
Were these issues covered by section 76 of the Law of Succession Act ? The Trial Court found that the appellant had concealed the fact of the claim by respondents from the Trial Court – that had the trial court been made aware of the said claim – the court would have directed accordingly before confirming the grant. The appellants were aware of the alleged claim, there is prima facie evidence that it may/may not be the case – created by the appearance of the names Gedion Mwanzina and Fredrick Nduso in the original tittle deed. The documents presented by the appellants would have to be interrogated in the appropriate forum for a proper determination to be made.
In the circumstances it is my view that the Trial Court was not in error as the court could not have ignored evidence that on its face could vitiate the grant. Recalling that under section 76 of the Law of Succession Act the Court can also Act suo motu - it is my considered view, that the appellants, having become aware of the claim by the respondents ought to have disclosed the same to the Court – and that failure has brought their grant here.
In the circumstances – I acknowledge that the court did not have jurisdiction as a P&A Court to deal with a customary trust – the court did not make a finding on that. The grant was correctly revoked for nondisclosure of a material fact. The evidence was presented – but before the wrong forum.
The appeal is without merit but considering the interests of justice and the nature of this matter, the following orders issue.
1) The grant is suspended to the extent of the certificate of confirmation of grant dated 18/3/2024
2) The appellants remain the personal representatives of the deceased for purposes of any suit
3) The respondents; – If they have not filed suit in the appropriate court have 45 days w.e.f from 18 th September 2026 to file serve their plaint. In default the suspension order will lapse and the grant will stand reinstated.
4) Costs in the cause
Dated signed and delivered via CTS this 16 th September 2026
Mumbua T Matheka
Judge
CA Chrispol
JUDGMENT HCFA E002 OF 2025 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
HIGHCOURT FAMILY APPEAL NOE002 OF 2025
RE ESTATE OF FREDRICK NDUSO MWANZINA ( DECEASED)
SCOLLAH MUENI MUTUA
SIMON NTHANGAI NDUSO..................................................................................................................APPELLANTS
VS
BEATRICE JUMA
ABEDNEGO JUMA..............................................................................................................................RESPONDENTS
(Appeal from the Ruling of Elizabeth Kemei (RM) delivered on 14 th January 2025 in Makueni MCC Succession Cause no E617 of 2022)
JUDGMENT
Background
Frederick Nduso Mwanzina died on 1st August 1988 at Kilala in Machakos.
From the record before me, Succession Cause No. 172 of 1996 was filed at the High Court of Kenya at Nairobi by his son Rafael Muiwa Nduso and widow Rose Nduku Nduso. According to Form P&A 5 dated 3rd September 1995, he was survived by his widow Rose Nduku Nduso and his children:
1. Polycarp Mwalyo Nduso
2. Scholastica Mueni Mutua
3. Rafael Muiwa Nduso
4. Leah Kethi Ngumuta
5. Simon Ntangai Nduso
6. Nicholas Mwangangi Nduso
7. Gideon Mwanzina Nduso
8. Catherine Nzula Nduso
9. John Mukuva Nduso
The Estate
His estate was indicated to be:
1. Ukia/Kilala/26 – 5 hectares
2. Ukia/Kilala/39 – 0.5 hectares
GRANT OF LETTERS OF ADMINISTRATION
It was indicated that the consent was given by Polycarp, Scholastica, Leah and Simon. The other children, Nicholas, Gideon, Catherine and John, were minors. A Grant of Letters of Administration was issued to the two administrators on 11th April 1996. There is a consent dated 27th July 2022 where all the beneficiaries consented to the grant being issued to the two applicants.
OBJECTION
An objection was filed by Beatrice Juma and Abednego Juma.
According to the objectors, Title Nos. Ukia/Kilala/26 and Ukia/Kilala/39 belonged to one Gideon Mwanzina, who is deceased, and that Gideon Mwanzina was husband to three wives, namely Priscilla Kalulu, Teta Mwanzina and Ngali Mwanzina. Frederick Nduso Mwanzina was the son of Priscilla Kalulu. Teta Mwanzina gave birth to David James and Ngali Mwanzina gave birth to Katanu and Nzongulu.
The objectors stated that when the land was adjudicated, Gideon Mwanzina had the properties registered in both his name and the name of Frederick Nduso, his 1 st born son. That before he died, Gideon Mwanzina had subdivided his land among his three wives. That after his death he died, Frederick Nduso proceeded to change the name in the registry to remove the name of Gideon Mwanzina and retain his own name, making it appear as if he was the registered proprietor of the two parcels of land.
According to the objectors, the property was held by Gideon Mwanzina and Frederick Nduso in trust for the whole family of Gideon Mwanzina.
SUMMONS FOR REVOCATION OF GRANT
A Summons for Revocation of Grant dated 11th September 2024 was filed seeking that the grant made on 9th August 2023 and confirmed on 18th March 2024 be revoked or annulled as the same was obtained fraudulently by concealment of material facts and false statements.
The main grounds were that the grant was confirmed without considering the interests of Beatrice Juma and Abednego Juma, the objectors herein, in the estate of Frederick Mwanzina, in that Parcel No. Ukia/Kilala/26 and Parcel No. Ukia/Kilala/39. That the parcels of land in contention were registered in the names of Gideon Mwanzina, who was the father to the deceased, and Frederick Mwanzina Nduso, who was the son, to hold in trust for the family. That after the demise of Gideon, his name was irregularly removed from the title document by Frederick Nduso, locking out the interest of the applicants.
In the summons for revocation of grant, it was stated that Gideon Mwanzina had settled on the land with his three wives, one of whom was the mother of the deceased herein.
RULING OF THE TRIAL COURT
The learned trial magistrate heard the application and found that it had merit and proceeded to revoke the grant under Section 76 of the Law of Succession Act.The learned magistrate said:
“The applicants have presented before this court copies of two green cards over the land parcels in contention. Upon interrogation of the said cards, I take note that the initial entry on the proprietorship section for both cards dated 22nd May 1979 indicate the names Frederick Nduso Gideon Mwanzina. For Parcel No. Ukia/Kilala/39, the same appears struck out by hand and on 11th June 1985 the name of the deceased herein, Frederick Nduso, was entered in the proprietorship section.As for Parcel No. Ukia/Kilala/26, the entry remains though the same were similarly subsequently registered in the name of Frederick Nduso.
It is not lost to the court that the respondents have presented a sale agreement dated 13th November 1968 indicating that the deceased herein was the land purchaser. However, bearing in mind that the father to the deceased was named Gideon Mwanzina, it was without a doubt difficult to tell whether the names as indicated belong to the deceased herein only or whether they are two separate names to include the father to the deceased herein.”
The learned trial magistrate stated further that:
they raise substantial questions as to the matters of ownership of the said parcels as well as whether there was concealment of information leading up to the issuance of the grant herein.
The court concluded:
“It is therefore imperative in my considered opinion that the questions be addressed and/or clarified by both parties. This can only be done so by giving each party their day in court.”
THE APPEAL
The administrators were aggrieved by that ruling and filed a Memorandum of Appeal.
GROUNDS OF APPEAL
1. That the learned magistrate had in law and in fact misdirected herself in revoking the Certificate of Confirmation of Grant issued on 18th March 2024.
2. That the learned magistrate had in law and fact misdirected herself in failing to consider the issue of jurisdiction raised by the appellants at the lower court.
3. That the learned magistrate had in law and fact misdirected herself by failing to consider the evidence tendered by the appellants at the lower court.
4. That the learned magistrate had in law and fact misdirected herself in failing to consider the applicable case law availed by the appellants.
5. That the learned magistrate had in law and in fact failed to take into consideration the relevant provisions of the law.
The appellants sought that that the ruling delivered on 14th January 2025 and all subsequent orders and decree be set aside. That the Certificate of Confirmation of Grant issued on 18th March 2024 be reinstated and that the costs of the appeal and the lower court be paid to the appellants by the respondents.
SUBMISSIONS
Parties were given time to file written submissions and each counsel had the opportunity to highlight their submissions.
For the appellants Mr. Mutuku submitted that their submissions were dated 12 th May 2025.
Appellants’ Submissions
Counsel for the appellants submitted that this Court, as a first appellate court, is required to re-evaluate the evidence that was before the trial court, analyse it and arrive at its own independent conclusion. Reliance was placed on Selle v Associated Motor Boat Company Limited [1968] EA 123 , where the court held that:
“The appellate court is called upon to evaluate the trial court's evidence, analyse the same and come up with its own conclusion, but in so doing, the court ought to take into account that it never had an opportunity of seeing nor hearing the witnesses.”
On whether the learned trial magistrate erred in law and fact by revoking the certificate of confirmation of grant issued on 18 March 2024
It was submitted that the trial court ought to have been guided by section 76 of the Law of Succession Act.
The appellants relied on Re Estate of Kisigwa Asuga Asuga (Deceased), H.C. P&A No. 158 of 2000 [2016] eKLR , where the court stated:
“... power to revoke a grant is discretionary. Power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke a grant. And when a court is called upon to exercise it, it must take into account interests of all beneficiaries entitled to the deceased estate and ensure that the action taken will be in the interest of justice.”
It was submitted that the respondents’ contention that the two properties of the estate were initially registered in the names of Gideon Mwanzina and the deceased, Frederick Nduso Mwanzina, was factually incorrect. The appellants submitted that they produced before the trial court the green cards in respect of the properties to show that the properties were registered only in the name of Frederick Nduso Gideon Mwanzina. The appellants further submitted that they produced agreements for sale showing that the deceased had purchased the properties.
It was submitted that the trial court ought to have found that the summons for revocation was in reality a claim founded on customary trust disguised as a summons for revocation of grant. The appellants relied on Re Estate of Raphael Kwama Shituku (Deceased), H.C. P&A No. 73 of 2005 [2016] eKLR , where the court stated:
“The objectors’ claim being founded on trust or customary trust coupled with prolonged occupation and use of land, this in my view is not a matter within the jurisdiction of this court. The objectors claim that the land the subject of this cause was owned by their father and that she therefore has an interest over it cannot be entertained by this court at this point in time. For the foregoing reasons, the summons dated 19 June 2011 is declined and dismissed. Each party to bear its own costs.”
Further reliance was placed on Re Estate of James Muiruri Kamau (Deceased), H.C. P&A No. 1 of 2002 [2018] eKLR , where the court stated:
“To that extent, if the applicants held that the said title was held in trust for them, it would be incumbent upon them to mount a legal challenge against the estate of the deceased through the administrator of the estate. In essence, what this gives rise to is a position of competing interests in land. The question arises as to whether these grounds suffice to warrant the revocation of a grant and whether this court has the necessary jurisdiction to entertain a suit seeking determination of a question of land held in trust. From the foregoing, the applicants’ application seeks orders that are not available under section 76 of the Law of Succession Act that provides for revocation of grant. I find no merit in the summons for revocation dated 7th May 2012 and I dismiss the same.”
It was submitted that the foregoing authorities demonstrate that the standards for revocation of a grant had not been met in the present case and that the trial court misdirected itself.
On whether the learned trial magistrate erred in law and fact by failing to consider the issue of jurisdiction raised by the appellants
It was submitted that the appellants adduced evidence to show that the first registration of the suit properties was effected in 1979 in the sole name of their father and that title deeds were issued in 1985.
It was further submitted that the respondents never raised any issue regarding ownership of the properties during the lifetime of the registered proprietor and only raised the issue after his death.
The appellants submitted that the summons for revocation was an attempt to litigate over ownership of the properties and raise issues of customary trust. According to the appellants, such issues fall within the jurisdiction of the Environment and Land Court and not the succession court.
The appellants relied on Re Estate of Raphael Shituku (Deceased) [2016] eKLR and In Re Estate of Richard Karanja Javan [2014] eKLR , where the court stated:
“It is not in dispute that the deceased was the registered proprietor of the property in question. His registration as such was not disputed until after his death. The registration in question was under the Registered Land Act, Cap 300 Laws of Kenya (now repealed). It was a first registration. By dint of section 143 of the Registered Land Act, the said registration cannot be faulted. There is judicial authority on this in Obiero v Opiyo & Others [1972] EA 227 where it was held that a first registration is indefeasible. Even if fraud is proved. There is therefore no merit in the applicant’s case. Even if she had a case that there existed a trust in her mother’s favour, the same ought to be established in a suit before the Environment and Land Court.”
The appellants also relied on Re Estate of James Muiruri Kamau (Deceased) [2018] eKLR , cited in Re Estate of Kamani Kinuthia for the proposition that succession proceedings are not the appropriate forum for challenging the deceased’s title to property, and that a claim founded on trust ought to be the subject of separate proceedings in which the alleged trust must first be proved.
On whether the learned trial magistrate erred in law and fact by failing to consider the evidence tendered by the appellants
It was submitted that the appellants produced before the trial court:
• A letter from the Chief dated 4 July 2022 indicating the dependants and beneficiaries of the deceased and showing that the respondents were not beneficiaries as they were not children of the deceased.
• Green cards in respect of the properties showing that only one entry was made in 1979 in the name of Frederick Nduso Gideon Mwanzina.
• Documents showing that the deceased had adopted the baptismal name of his father, Gideon, and used the names Frederick Nduso Gideon Mwanzina and Frederick Nduso Mwanzina interchangeably.
• The deceased’s national identity card bearing the name Frederick Nduso Mwanzina.
• A marriage certificate indicating the name Frederick Nduso and identifying his father as Gideon Mwanzina.
• A job card from the Kenya Ports Authority bearing the name Frederick N. Mwanzina.
• A Kenya Commercial Bank savings slip dated 29 July 1988 indicating the name Frederick Nduso Gideon Mwanzina.
• Employment records dated 25 April 1983 and 4 May 1988 from the Kenya Ports Authority showing that the deceased used the names Frederick Dusso G. Mwanzina and Nduso G. Mwanzina, the letter “G” being an abbreviation for Gideon.
• A sale agreement dated 13 November 1968 showing that the deceased purchased the properties for value.
• A letter dated 8 February 1977 from the Office of the President indicating that the deceased had requested a loan to purchase Title No. Ukia/Kilala/26 and that title deeds had not yet been issued.
• Documents showing that Ukia/Kilala/26 was registered in the name of Frederick Nduso G. Mwanzina.
• Receipts dated 14 May 1974 and 16 May 1974 relating to proceedings before the Land Adjudication Committee.
• A certificate of boundary dated 20 May 1983.
• A Land Control Board consent dated June 1985 approving correction of the name from Frederick Nduso Gideon Mwanzina to Frederick Nduso Mwanzina.
It was submitted that had the trial court properly considered the foregoing documents, it would have found that Frederick Nduso Gideon Mwanzina and Frederick Nduso Mwanzina were one and the same person and that the changes made in 1985 were intended to align the registration particulars with the deceased’s national identity card.
It was therefore submitted that the appeal is merited and ought to be allowed, there having been no evidence to justify the revocation of the grant.
Respondents’ Submissions
For the respondents the submissions are dated 21 st October 2025 counsel highlighted them.
Ms. Mutua reminded the court that on a first appeal the duty of the court is as was stated by the Court of Appeal in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Company Advocates [2013] eKLR: The court stated inter alia
“We are reminded of our primary role as a first appellate court, namely to re evaluate, reassess and re analyse the extracts on record and then determine whether the conclusions reached by the learned judge are to stand or not and give reasons either way.”
In the submissions the respondents gave background to the appeal and stated that the deceased Frederick Nduso Mwanzina was the first-born son of Gideon Mwanzina who had three wives. That the respondents are the grandchildren of Gideon Mwanzina.
That Gideon Mwanzina acquired the parcels of land known as Ukia/Kilala/26 and Ukia/Kilala/39 which were registered in his name and the name of the deceased Frederick Nduso Mwanzina to hold in trust for other beneficiaries. That the respondents were been born and raised in the said parcels of land and were shocked to discover that the appellants petitioned for Letters of Administration which were subsequently confirmed without disclosing that the land was the subject of a customary trust.
That the respondents filed their summons for revocation of grant on the ground that the grant was obtained fraudulently through misrepresentation and concealment of material facts. That the appellants failed to disclose the rightful heirs to the estate and excluded the respondents. That the great issue is that the respondents contend that the appellants or their predecessors altered land title deeds fraudulently by removing the name of Gideon Mwanzina, the father of the deceased, from the two titles without the knowledge or consent of the family with the intent to disinherit the other family members.
According to the respondents, the issues for determination are:
1. Whether the trial court ignored the issue of jurisdiction.
2. Whether the court had the requisite jurisdiction to revoke the grant.
3. Whether the respondents disclosed sufficient reasons for revocation of the grant.
4. What orders should issue .
On the first issue, it is submitted that the issue of trust raised by the respondents can only be determined in the Environment and Land Court. That the probate court can only distribute assets that are undisputedly owned by the deceased. It is submitted that the appellants failed to disclose to the trial court the existence of a customary trust. It is further submitted that the respondents did not invite the court to establish the existence of the said trust but only to establish that there was material non-disclosure of the existence of the customary trust which rendered the grant defective and a subject for revocation. The respondents rely on In the Estate of Eliakim Shibuya Musa (Deceased) [2023] eKLR. It is submitted that the court did not ignore the issue of jurisdiction but only found that there was reason for revocation of the grant.
On whether there was sufficient reason for revocation, the respondents rely on Section 76 of the Law of Succession Act and the case of Albert Imbuga Kisigwa v Rachel Kavai Kisigwa [2016] eKLR.
It is submitted that the letter from the Chief is proof of the relationship between the objectors and the deceased. That the petitioners’ deliberate omission of critical beneficiaries from their application is tantamount to an attempt to mislead the court regarding the true beneficiaries.
The court is also referred to Section 51(2) of the Act requiring the applicant to disclose all relevant information regarding the estate of the deceased.
The respondents further rely on In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR on the application of Section 76 of the Law of Succession Act to the facts of this case.In that matter the court acknowledged that the jurisdiction to determine the validity or enforceability of sale agreements between the deceased and the applicants lay with the ELC Court and proceeded to state as follows:
"But of relevance in these proceedings is that such material facts were never disclosed to this court during confirmation of the grant so as to enable the court to make an informed decision on distribution of the estate. Needless to state that in any judicial proceeding, parties must make full disclosure to the court of all material facts to the case, including succession cases. This general rule of law emphasises utmost good faith from parties who come before the court. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure streams of justice. Such must immediately be subjected to serious reverse osmosis to purify the streams of justice if society is to be accordingly regulated by law."
The court proceeded to emphasise the role of personal representatives, which is to fulfil the obligations and liabilities of the estate or to realise any right or benefit thereof for the estate of the deceased.
The respondent also relies on Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules.
The respondents further rely on Re Estate of Haji Mohammed Bou Saeed (Deceased) [2018] eKLR, where the court stated that its primary duty is to protect the interests of all beneficiaries and ensure that the estate is administered fairly and equitably .
As to the orders that can issue, the court was referred to the Court of Appeal decision in Matei Julius Mulili Ndeti & Another v Ndeti & Another, KECA 150 (KLR), where the court, faced with a similar issue, revoked the grant but directed the issue of ownership to the proper forum. The court stated:
"In view of the facts that the gist of the appellant's case relates to ownership of the suit properties, we find that the right forum for the dispute is the ELC. The ELC is seized with the requisite jurisdiction to determine all the issues raised by the appellant herein as pertains to ownership of the suit properties and there is already a suit pending before that court on the issue. Once the ELC renders itself on the question of ownership, the High Court can be moved if there is any outstanding or unresolved question of succession."
The respondent also relies on Rule 41(3) of the Probate and Administration Rules, which provides for the stay of distribution of any property in respect of which there may be a dispute.
The court is urged to find that this appeal lacks merit and to dismiss it
Analysis and Determination
I have carefully considered the submissions on record, the evidence placed before the Trial Court and the ruling of the learned trial magistrate.
The issue for determination is whether the appeal has any merit.
To determine this issue , this court is required to re – asses the evidence on record and draw its own conclusions – as guided by Selle and Abok James cases above.
It is not in dispute that the deceased died – and the properties Ukia/ Kilala 26 and 39 were in his name at the material time. It is not also in dispute that before 1985, the two tittles contained the names Fredrick Nduso Gedion Mwanzina. It is also not disputed that it is indeed Fredrick Nduso who had the name Gedion Mwanzina removed – according to the appellants he did so so as to align his properties with the names as they appeared in his National ID.
This is where the parties disputed. The respondents have taken the position that Fredrick did that to obliterate the fact that Gedion Mwanzina, his father, had registered the entire family Land in both his – Gedeon’s and Fredrick’s (his first born son) in trust for his family which comprised of three wives and their children –That the 2 held the property in trust for the entire family.
It is on this basis that they filed their objection to the issue of grant dated 14/8/2023, in response to that objection, vide their joint affidavit sworn on 25/8/2023. The appellants deponed that the objectors were their cousins, and that though in their view, they were not entitled to the estate of their father – their claim to a share of the estate could only be brought for “determination during the distribution of the estate of the deceased which could only arise 6 months from the date of appointment of the personal representatives” .
From their own deposition, the appellants recognize that he respondents are their cousins - They also recognize that the respondents could raise their claim to the share of the estate at the time of distribution.
Having made that concession , then they had a duty to make the respondents aware of the fact that the application i.e summons for confirmation of grant, had been filed – so that if they had any issues they could raise them then. Having recognized that there was an objection – which was not heard – as far as I could tell from the record – and which appears to have been held in abeyance pending the hearing of the summons for confirmation of grant – the appellants were obligated to inform the objectors/ respondents of that earlier. I say this relying entirely on their response to the objection to the issuance of the grant. That is what good faith is about.
Coming to the Summons for Revocation of grant and the Ruling of Hon Kemei RM, it is noteworthy that the issue of jurisdiction would arise – if the learned trial Magistrate proceeded to make a determination whether or not there was a customary trust in existence as alleged by the respondents.
I have read the Ruling – and clearly – there is no determination by the trial court as to the existence of a customary trust.
I agree with the submissions that this indeed would be a matter for determination by the ELC Court, and not the Probate Court. Hence – it is not correct that the trial court ignored the question of jurisdiction – the trial court rightly avoided to deal with the issue that would have brought its jurisdiction as a probate court in question.
Did the trial court ignore the evidence? To answer this question, I must find the answer to the 1 st question the appellants must answer to themselves: this evidence they were bringing , what was it intended to prove? Their answer? They intended to prove that the two titles were registered in the name of the deceased herein, and that he acquired them through a legitimate purchase - this was in response to the claim by the respondents that that was not the case.
Evidently – the real issue then is whether or not the titles, the assets of the estate herein were originally registered in the names of Gedion Mwanzina and Fredrick Nduso and whether, the registration was in trust for the entire family of Gedion Mwanzina, and whether, Fredrick Nduso had fraudulently and irregularly removed the name of his father from the tittle deeds to create the impression that he was the sole proprietor of those two tittles.
These were not issues to be determined by the learned trial magistrate as a P&A Court – they are clearly issues for the Land Court. In her view the issues required that each party be heard/have their day in Court, and that the issues required to be determined before the estate could be distributed.
Were these issues covered by section 76 of the Law of Succession Act ? The Trial Court found that the appellant had concealed the fact of the claim by respondents from the Trial Court – that had the trial court been made aware of the said claim – the court would have directed accordingly before confirming the grant. The appellants were aware of the alleged claim, there is prima facie evidence that it may/may not be the case – created by the appearance of the names Gedion Mwanzina and Fredrick Nduso in the original tittle deed. The documents presented by the appellants would have to be interrogated in the appropriate forum for a proper determination to be made.
In the circumstances it is my view that the Trial Court was not in error as the court could not have ignored evidence that on its face could vitiate the grant. Recalling that under section 76 of the Law of Succession Act the Court can also Act suo motu - it is my considered view, that the appellants, having become aware of the claim by the respondents ought to have disclosed the same to the Court – and that failure has brought their grant here.
In the circumstances – I acknowledge that the court did not have jurisdiction as a P&A Court to deal with a customary trust – the court did not make a finding on that. The grant was correctly revoked for nondisclosure of a material fact. The evidence was presented – but before the wrong forum.
The appeal is without merit but considering the interests of justice and the nature of this matter, the following orders issue.
1) The grant is suspended to the extent of the certificate of confirmation of grant dated 18/3/2024
2) The appellants remain the personal representatives of the deceased for purposes of any suit
3) The respondents; – If they have not filed suit in the appropriate court have 45 days w.e.f from 18 th September 2026 to file serve their plaint. In default the suspension order will lapse and the grant will stand reinstated.
4) Costs in the cause
Dated signed and delivered via CTS this 16 th September 2026
Mumbua T Matheka
Judge
CA Chrispol
JUDGMENT HCFA E002 OF 2025 Page 2 of 2