Samuel v Mwakio [2025] KEHC 5277 (KLR)

Samuel v Mwakio (Civil Appeal E019 of 2024) [2025] KEHC 5277 (KLR) (12 March 2025) (Judgment)

Neutral citation: [2025] KEHC 5277 (KLR)

Republic of Kenya

In the High Court at Voi

Civil Appeal E019 of 2024

AN Ongeri, J

March 12, 2025

Between

Daniel Kirigha Samuel

Appellant

and

Alima Mwakio

Respondent

(Being an appeal from the Judgment and Order of Hon. C. K. Kithinji (PM) in Voi Misc. Succession Cause No. E041 of 2021 delivered on 18th November 2022)

Judgment

1. The Appellant in this case Daniel Kirigha Samuel filed a citation seeking to be granted letters of administration in the Estate of Hamisi Mwakio Mohamed (deceased) on the grounds that he bought land from the deceased.

2. The Appellant averred that on 15th June 2013 he entered into an agreement to buy land from one Anzazi Kabwere Ngonyo.

3. The land was at the time unsurveyed as it was falling within the Voi Ndara “A” Adjudication Section.

4. Later, the land was surveyed and registered as Voi Ndara “A” 654.

5. There was a dispute between the seller who sold the land to him and the family of the current holder of the land title deed.

6. Later the Appellant learnt that the current owners registered the land secretly and fraudulently.

7. The widow of the deceased Hamisi Mwakio Mohamed whose name is ALIMA MWAKIO swore a replying affidavit in which she stated that there was a dispute which was resolved amicably and she was surprised to be served with the citation.

8. The trial court found that the Appellant did not buy land from the deceased Hamisi Mwakio Mohamed (deceased) to make him a Creditor.

9. The Citation proceedings were dismissed with costs to the Citee.

10. The Appellant has filed an appeal to this court on the following grounds:-i.That the learned Magistrate erred in law and in fact in failing to exercise her discretion in favor of the Appellant.ii.That the learned Magistrate erred in law and in fact by ignoring the decision of the Land Adjudication Committee which categorically recognized the status quo on the ground.iii.That the learned Magistrate erred in law and in fact by deciding that the Appellant had no claim against the Estate of the deceased.iv.That the learned Magistrate erred in law and in fact by taking wrong evidence of her own by even referring to one Anzazi Kabwere as the Late yet she is still alive and kicking.v.That the trial Magistrate erred in law by ignoring the overwhelming evidence presented by the Appellant thus arriving at a wrong determination.vi.That the learned Magistrate erred in law by not appreciating the fact that the Appellant’s land is falling inside a land registered in the name of the deceased.

11. The parties filed written submissions as follows:-Appellant’s submissionsThe Appellant submitted that the Respondent who is the widow of the deceased has delayed and/or declined to take a grant and at the same time failed to renounce her right to take a grant prompting filing of the citation by the Appellant who has a valid claim against the Estate of the deceased Hamisi Mwakio Mohamed (Deceased).

12. Further, that the Respondent has a superior right to grant under Section 66 of the Law of Succession Act since the deceased died intestate.

13. The Appellant submitted that the purpose of filing the citation is to prompt the Respondent to take letters of administration to enable the Appellant file a suit in the ELC against the Estate of the deceased.

14. That the trial court acted on the wrong principles of law and arrived at a wrong finding.

15. This being a first appeal, the duty of the first appellate court is as stated in the case of Selle v Associated Motor Boat Co. [1968] EA 123 where the Court of Appeal held that:“The first appellate court has a duty to re-evaluate the evidence presented before the trial court and arrive at its own independent conclusion. The appellate court must subject the entire evidence to a fresh scrutiny and draw its own inferences. While the appellate court should consider the trial court's findings, it is not bound by them and must form its own independent judgment”.

16. The issue for determination is whether the succession court was right in dismissing the Citation proceedings which the Appellant filed.

17. I find that the respondent does not deny that she is the widow of the deceased Hamisi Mwakio Mohamed.

18. It is also not in dispute that the purpose of filing the citation is to prompt the Respondent to take letters of administration to enable the Appellant file a suit in the ELC against the Estate of the deceased.

19. The Respondent has a superior right to grant under Section 66 of the Law of Succession Act since the deceased died intestate and she is the widow.

20. Rule 7(7) of the Law of succession rules states as follows;“Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—(a)renounced his right generally to apply for a grant; or(b)consented in writing to the making of the grant to the applicant; or(c)been issued with a citation calling upon him either to renounce such right or to apply for a grant.”

21. The appellant is required to issue the respondent with a citation calling upon her to apply for grant and if she fails to apply, he can petition the court for grant of the same.

22. In the case of Nanzala v Mulunda (Succession Appeal 1 of 2021) [2023] KEHC 20341 (KLR) (21 July 2023) (Judgment), the cour stated as follows;“Rule 7(7) covers a petitioner without prior right of administration. The respondent was such a petitioner, for his entitlement to administration was lesser to that of the appellant. Under Rule 7(7), such a petitioner is required to either obtain a renunciation of right by the person with prior right, or a consent in writing by such a person to him to petition, or obtain a citation addressed to that person requiring him to take out grant or otherwise renounce his right to apply. In this case, I am satisfied that the respondent caused a citation to issue to the appellant to take out a grant, but she failed to, hence the court gave him the go-ahead.”

23. The Trial Court was wrong in dismissing the appellant’s citation and for that reason I allow the appeal.

24. I direct that the respondent applies for grant of letters of administration within 30 days of this date and failure to do so the appellant to be at liberty to apply for the same.

25. Each party to bear its own cots of the appeal.

DATED, SIGNED AND DELIVERED THIS 12TH DAY OF MARCH 2025 IN OPEN COURT AT VOI.ASENATH ONGERIJUDGEIn the presence of:-Court Assistants: Maina/Millicent