Nyambalo & another v Apata [2022] KEHC 16314 (KLR)

Nyambalo & another v Apata (Civil Appeal E080 of 2022) [2022] KEHC 16314 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16314 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E080 of 2022

KW Kiarie, J

December 14, 2022

Between

John Odhiambo Nyambalo

1st Appellant

Joseph Ojiro Nyambalo

2nd Appellant

and

Mary Apata

Respondent

(Being an Appeal from the ruling and order in Mbita Senior Resident Magistrate’s SRMCC No.4 of 2016 by Hon. Nicodemus N. Moseti –Senior Resident Magistrate)

Judgment

1. On September 14, 2022 Hon Nicodemus N Moseti allowed an application for revocation of grant after making a finding that the petitioner was guilty of concealment of material facts.

2. The appellants were aggrieved by the said ruling and filed this appeal. They raised the following grounds:a.The learned magistrate erred in law and in fact by entertaining an application petition for revocation of letters of administration and confirmation of the same over the estate of the deceased Jeconiah Nyambalo Odindo on L R No Rusinga/Waware/2185, 1596, 1590, 1297 and 1837 Plot No 4’A’ at Mbita measuring (50 x 100) ft. and 1A at Mbita measuring (50 x 100) ft. and failing to give proper direction on the same.b.The learned trial magistrate erred in law and fact by not bringing cognizant of the procedure in law [sic] where petition for letters of Grant [sic] has been filed and that order of precedent for such petition.[sic]c.The learned trial magistrate erred in law and fact by awarding costs in a family matter where everybody is a beneficiary by not considering the fact that the petitioner had spent a lot of money and time just to assist the family benefit.

3. The appeal was opposed by the respondent through the firm of Nyakwamba & Company Advocates on the following grounds:a.That the decision was well founded on evidence and on correct principles of law of succession.b.That the appeal lacks merit.

4. This court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle v Associated Motor Boat Co Ltd [1965] EA 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. The respondent herein contended that she was a daughter of the deceased Jeconiah Nyambalo Odindo in respect of whose estate this appeal concerns. This fact was conceded to by the appellants and their witnesses.

6. Upon my perusal of form P & A 5, I have established that she was not included as a beneficiary. The learned trial magistrate was therefore justified to revoke the grant.

7. I therefore find that the appeal lacks merit. I accordingly dismiss it with costs to the respondent.

8. John Odhiambo Nyambalo informed the court that he did not appeal. Upon my perusal of the record, I have confirmed that the appeal was lodged by Joseph Onjiro Nyambalo, the 2nd appellant. He (2nd appellant) will bear the costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 14THDAY OF DECEMBER, 2022KIARIE WAWERU KIARIEJUDGE