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Background
This appeal arises from the ruling delivered on 21 st November 2024 by, in Nyamira Chief Magistrate’s Court Succession Cause No. E131 of 2023 , concerning the estate of the late Arisi Kibwogo (deceased).
Before the subordinate court, the Appellant, Teresa Moraa Nyabuto, lodged an objection to the petition for grant of letters of administration intestate filed by the Respondent, Yovensia Kerubo Arisi . The Appellant contended that the Respondent was not a lawful beneficiary of the deceased’s estate. The trial court, after hearing one witness, dismissed the objection with costs and found that both parties were beneficiaries of the deceased.
Aggrieved by that decision, the Appellant filed this appeal. The Memorandum of Appeal dated 13 th December 2024 sets out twelve (12) grounds which, in summary, are that:
The learned magistrate erred in law and fact by invoking Section 76 of the Law of Succession Act , which relates to revocation of confirmed grants, yet the grant in issue had not been confirmed.
The court erred by relying solely on the testimony and introduction letter of the area chief without considering other evidence on record.
The court failed to allow the appellant’s witnesses, whose statements were filed, to testify, thereby denying her a fair hearing.
The court disregarded relevant documents, including the deceased’s eulogy, which had been filed by the objector.
The court failed to consider the appellant’s submissions and the central issues raised in the objection proceedings.
The trial magistrate misdirected himself on the applicable law regarding proof of relationship and eligibility under the Law of Succession Act .
The appellant prays that the impugned ruling be set aside and the matter remitted for retrial before a different magistrate.
The appeal was canvassed by way of written submissions filed by both parties. The Appellant, through M/s Mong’are & Co. Advocates, filed submissions dated 13 th December 2024. It was argued that the trial proceedings were conducted in violation of the appellant’s constitutional right to a fair hearing under Article 50(1) and Article 25(c) of the Constitution. It was also submitted that although the court directed the matter to proceed by viva voce evidence, only one witness, the area chief, was allowed to testify, despite other witness statements having been filed by the Appellant.
Appellant relied on Christopher Odhiambo Karan v. David Ouma Ochieng & 2 others [2015] eKLR , where it was held that the right to a fair hearing incorporates the rules of natural justice, particularly the principles of audi alteram partem and nemo judex in causa sua.
Reference was made to Steel and Morris v. United Kingdom [2005] ECHR 103 and Indru Ramchand Bharvani & Others v. Union of India (1988 SCR Supp (1) 544) , both underscoring that a fair hearing demands not merely the opportunity to be heard, but that such opportunity be reasonable and effective.
The Appellant further cited James Muniu Muchere v. National Bank of Kenya Ltd [2019] eKLR , emphasizing that in civil proceedings, findings must rest on credible, properly evaluated evidence. The restriction of testimony to one witness, Appellant argued, denied her a reasonable opportunity to present her case and rendered the proceedings procedurally defective.
Based on the foregoing, the Appellant urged the Court to allow the appeal, set aside the ruling, and order a retrial before a different magistrate.
The Respondent, through M/s Nyamwange & Co. Advocates, opposed the appeal. It was submitted that both parties were heard and that the trial court correctly evaluated the evidence before it. Respondent maintained that reliance on the area chief’s testimony was justified as the chief was familiar with the deceased’s household circumstances.
The Respondent further argued that the Appellant failed to demonstrate any procedural irregularity or miscarriage of justice that would justify interference by the High Court. The Respondent therefore prayed that the appeal be dismissed with costs.
I have considered the grounds of appeal and the submission of both parties in light of the trial court record.
This being a first appeal, this Court is under a duty to re-evaluate, assess, and weigh the evidence as a whole and arrive at its own findings and independent conclusion. In doing so, the Court must take into account that it neither saw nor heard the witnesses testify. This duty was well articulated in Okeno v Republic [1972] EA 32 , where the Court stated that an appellant on a first appeal is entitled to a fresh and exhaustive re-examination of the evidence and the appellate court’s own decision thereon, while bearing in mind that the trial court had the advantage of observing the witnesses. See also Peters v Sunday Post [1958] EA 424 .
The court is alive to the fact that it ought not substitute its own findings on contested factual issues that require viva voce evidence and credibility assessment, as that would amount to prejudging matters reserved for the trial court. The function of this Court is therefore to ensure procedural regularity, fidelity to the law, and adherence to constitutional guarantees of fairness.
Issues for Determination
From the pleadings and submissions, the following issues arise for determination:
Whether the Appellant was denied a fair hearing before the trial court
Whether the learned magistrate properly exercised his discretion in the conduct of the proceedings
Analysis and Determination
(1) Whether the Appellant was denied a fair hearing
Article 50(1) of the Constitution guarantees every person the right to have any dispute resolved in a fair and public hearing before an independent and impartial court or tribunal. This right is non-derogable under Article 25(c).
The record reveals without a doubt that the Appellant’s witnesses, whose statements were on record, were not called. The decision of the trial court was therefore based mainly on the chief’s testimony and some exhibits tendered on behalf of the Respondent.
In Christopher Odhiambo Karan v. David Ouma Ochieng (supra), the Court observed that fairness in adjudication is achieved when parties are afforded an equal and reasonable opportunity to present their evidence. Similarly, the European Court of Human Rights in Steel and Morris v. United Kingdom (supra) emphasized that a fair hearing entails equality of arms and effective participation.
Upon evaluating the record, this Court finds that although the Appellant was present and participated in the proceedings, the limitation imposed on the presentation of her evidence effectively curtailed her right to be fully heard. The Court is therefore satisfied that the proceedings before the trial court did not attain the standard of fairness envisaged under Article 50(1) of the Constitution.
(2) Whether the magistrate properly exercised discretion
While a trial court retains discretion to control proceedings, such discretion must be exercised judiciously, fairly, and consistently with the principles of natural justice. The Law of Succession Act and the Probate and Administration Rules envisage a hearing process where all relevant evidence, oral and documentary, is received to enable a just determination of the persons entitled to benefit from a deceased’s estate.
As held in James Muniu Muchere v. National Bank of Kenya Ltd (supra), discretion must rest on a full appreciation of the evidence and be guided by sound reasoning. Limiting witnesses or evidence in a factual dispute, particularly one turning on personal relationships and dependency, deprives the court of a proper evidentiary foundation.
In the circumstances of this case, the trial court’s decision to restrict testimony to a single witness rendered the process incomplete. That procedural deficiency calls for appellate correction.
Having carefully considered the record, the submissions and the applicable law, the Court finds that this appeal is merited only to the extent that the Appellant was denied a fair and complete hearing.
Disposition
In the result, I make the following orders:
The appeal succeeds to the extent that the proceedings before the subordinate court did not satisfy the constitutional and statutory threshold of a fair hearing.
The Ruling of Hon. B. Okongo, Resident Magistrate, delivered on 21 st November 2024 in Nyamira Chief Magistrate’s Court Succession Cause No. E131 of 2023, is hereby set aside in its entirety.
The matter is remitted to the Chief Magistrate’s Court at Nyamira for re-hearing and determination with directions that both parties shall be accorded full opportunity to present their respective cases.
Pending the retrial, any grant or orders issued pursuant to the impugned proceedings shall remain suspended for purposes of preserving the estate.
The costs of this appeal shall abide the outcome of the retrial, since the matter has been remitted for a fresh hearing and neither party has yet succeeded on the merits.
Appearances
Court Assistant - Hilda
For Appellant - Mr. Omwenga for Mong’are & Co. Advocates
For Respondent - N/A for Nyamwenge & Co. Advocates
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Background
This appeal arises from the ruling delivered on 21 st November 2024 by, in Nyamira Chief Magistrate’s Court Succession Cause No. E131 of 2023 , concerning the estate of the late Arisi Kibwogo (deceased).
Before the subordinate court, the Appellant, Teresa Moraa Nyabuto, lodged an objection to the petition for grant of letters of administration intestate filed by the Respondent, Yovensia Kerubo Arisi . The Appellant contended that the Respondent was not a lawful beneficiary of the deceased’s estate. The trial court, after hearing one witness, dismissed the objection with costs and found that both parties were beneficiaries of the deceased.
Aggrieved by that decision, the Appellant filed this appeal. The Memorandum of Appeal dated 13 th December 2024 sets out twelve (12) grounds which, in summary, are that:
The learned magistrate erred in law and fact by invoking Section 76 of the Law of Succession Act , which relates to revocation of confirmed grants, yet the grant in issue had not been confirmed.
The court erred by relying solely on the testimony and introduction letter of the area chief without considering other evidence on record.
The court failed to allow the appellant’s witnesses, whose statements were filed, to testify, thereby denying her a fair hearing.
The court disregarded relevant documents, including the deceased’s eulogy, which had been filed by the objector.
The court failed to consider the appellant’s submissions and the central issues raised in the objection proceedings.
The trial magistrate misdirected himself on the applicable law regarding proof of relationship and eligibility under the Law of Succession Act .
The appellant prays that the impugned ruling be set aside and the matter remitted for retrial before a different magistrate.
The appeal was canvassed by way of written submissions filed by both parties. The Appellant, through M/s Mong’are & Co. Advocates, filed submissions dated 13 th December 2024. It was argued that the trial proceedings were conducted in violation of the appellant’s constitutional right to a fair hearing under Article 50(1) and Article 25(c) of the Constitution. It was also submitted that although the court directed the matter to proceed by viva voce evidence, only one witness, the area chief, was allowed to testify, despite other witness statements having been filed by the Appellant.
Appellant relied on Christopher Odhiambo Karan v. David Ouma Ochieng & 2 others [2015] eKLR , where it was held that the right to a fair hearing incorporates the rules of natural justice, particularly the principles of audi alteram partem and nemo judex in causa sua.
Reference was made to Steel and Morris v. United Kingdom [2005] ECHR 103 and Indru Ramchand Bharvani & Others v. Union of India (1988 SCR Supp (1) 544) , both underscoring that a fair hearing demands not merely the opportunity to be heard, but that such opportunity be reasonable and effective.
The Appellant further cited James Muniu Muchere v. National Bank of Kenya Ltd [2019] eKLR , emphasizing that in civil proceedings, findings must rest on credible, properly evaluated evidence. The restriction of testimony to one witness, Appellant argued, denied her a reasonable opportunity to present her case and rendered the proceedings procedurally defective.
Based on the foregoing, the Appellant urged the Court to allow the appeal, set aside the ruling, and order a retrial before a different magistrate.
The Respondent, through M/s Nyamwange & Co. Advocates, opposed the appeal. It was submitted that both parties were heard and that the trial court correctly evaluated the evidence before it. Respondent maintained that reliance on the area chief’s testimony was justified as the chief was familiar with the deceased’s household circumstances.
The Respondent further argued that the Appellant failed to demonstrate any procedural irregularity or miscarriage of justice that would justify interference by the High Court. The Respondent therefore prayed that the appeal be dismissed with costs.
I have considered the grounds of appeal and the submission of both parties in light of the trial court record.
This being a first appeal, this Court is under a duty to re-evaluate, assess, and weigh the evidence as a whole and arrive at its own findings and independent conclusion. In doing so, the Court must take into account that it neither saw nor heard the witnesses testify. This duty was well articulated in Okeno v Republic [1972] EA 32 , where the Court stated that an appellant on a first appeal is entitled to a fresh and exhaustive re-examination of the evidence and the appellate court’s own decision thereon, while bearing in mind that the trial court had the advantage of observing the witnesses. See also Peters v Sunday Post [1958] EA 424 .
The court is alive to the fact that it ought not substitute its own findings on contested factual issues that require viva voce evidence and credibility assessment, as that would amount to prejudging matters reserved for the trial court. The function of this Court is therefore to ensure procedural regularity, fidelity to the law, and adherence to constitutional guarantees of fairness.
Issues for Determination
From the pleadings and submissions, the following issues arise for determination:
Whether the Appellant was denied a fair hearing before the trial court
Whether the learned magistrate properly exercised his discretion in the conduct of the proceedings
Analysis and Determination
(1) Whether the Appellant was denied a fair hearing
Article 50(1) of the Constitution guarantees every person the right to have any dispute resolved in a fair and public hearing before an independent and impartial court or tribunal. This right is non-derogable under Article 25(c).
The record reveals without a doubt that the Appellant’s witnesses, whose statements were on record, were not called. The decision of the trial court was therefore based mainly on the chief’s testimony and some exhibits tendered on behalf of the Respondent.
In Christopher Odhiambo Karan v. David Ouma Ochieng (supra), the Court observed that fairness in adjudication is achieved when parties are afforded an equal and reasonable opportunity to present their evidence. Similarly, the European Court of Human Rights in Steel and Morris v. United Kingdom (supra) emphasized that a fair hearing entails equality of arms and effective participation.
Upon evaluating the record, this Court finds that although the Appellant was present and participated in the proceedings, the limitation imposed on the presentation of her evidence effectively curtailed her right to be fully heard. The Court is therefore satisfied that the proceedings before the trial court did not attain the standard of fairness envisaged under Article 50(1) of the Constitution.
(2) Whether the magistrate properly exercised discretion
While a trial court retains discretion to control proceedings, such discretion must be exercised judiciously, fairly, and consistently with the principles of natural justice. The Law of Succession Act and the Probate and Administration Rules envisage a hearing process where all relevant evidence, oral and documentary, is received to enable a just determination of the persons entitled to benefit from a deceased’s estate.
As held in James Muniu Muchere v. National Bank of Kenya Ltd (supra), discretion must rest on a full appreciation of the evidence and be guided by sound reasoning. Limiting witnesses or evidence in a factual dispute, particularly one turning on personal relationships and dependency, deprives the court of a proper evidentiary foundation.
In the circumstances of this case, the trial court’s decision to restrict testimony to a single witness rendered the process incomplete. That procedural deficiency calls for appellate correction.
Having carefully considered the record, the submissions and the applicable law, the Court finds that this appeal is merited only to the extent that the Appellant was denied a fair and complete hearing.
Disposition
In the result, I make the following orders:
The appeal succeeds to the extent that the proceedings before the subordinate court did not satisfy the constitutional and statutory threshold of a fair hearing.
The Ruling of Hon. B. Okongo, Resident Magistrate, delivered on 21 st November 2024 in Nyamira Chief Magistrate’s Court Succession Cause No. E131 of 2023, is hereby set aside in its entirety.
The matter is remitted to the Chief Magistrate’s Court at Nyamira for re-hearing and determination with directions that both parties shall be accorded full opportunity to present their respective cases.
Pending the retrial, any grant or orders issued pursuant to the impugned proceedings shall remain suspended for purposes of preserving the estate.
The costs of this appeal shall abide the outcome of the retrial, since the matter has been remitted for a fresh hearing and neither party has yet succeeded on the merits.
Appearances
Court Assistant - Hilda
For Appellant - Mr. Omwenga for Mong’are & Co. Advocates
For Respondent - N/A for Nyamwenge & Co. Advocates
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