Muongi & another v Muchiri (Civil Appeal 299 of 2019) [2025] KECA 312 (KLR)
The bottom line
#Kenya's Court of Appeal reopened a succession case after finding the judge wrongly ignored affidavit evidence about a new witness challenging the deceased's mental capacity when making a Will.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal may interfere with the High Court's discretionary refusal to set aside or review its judgment of 18th November 2016
- 2.Whether the learned Judge misdirected himself in finding that the appellants' claim of discovery of new evidence was not averred in their supporting affidavit
- 3.Whether the appellants' application to set aside/review the judgment disclosing grounds warranting review
Key legal issues
#Interference with discretionary decisions on appeal
The appellants established misdirection: the Judge overlooked the supporting affidavit of Anthony Kinyanjui Munyui and the ground on the face of the application regarding a new witness, so interference was warranted.
The Court reiterated the limited grounds for interfering with discretionary decisions. It found the Judge misdirected himself by stating there was no mention of the alleged discovery of a new witness, when the application was grounded on that averment and supported by a further affidavit deponing to the deceased's state of health at the time the Will was made. Since the circumstances of the Will's preparation and the deceased's capacity were central, this misdirection entitled the Court to interfere.
Consistency of the appellants' statements on awareness of the hearing date
The Court agreed with the Judge that the appellants' contradictory claims about awareness of the 14th July 2015 hearing date did not constitute a wrong exercise of discretion.
The application's body said the appellants were aware of the hearing date but the matter was not listed, while the joint supporting affidavit deponed they were unaware of the hearing date and were never served. The Court held these clearly inconsistent statements meant the Judge's finding of laxity and indolence was not a wrong exercise of discretion. However, this did not save the ruling given the misdirection on the review/discovery ground.
Legal principles established
#- The Court of Appeal will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account considerations he should not have, failed to take into account considerations he should have, or the decision is plainly wrong.
- A judgment may be reviewed where a ground of discovery of new evidence is raised on the face of the application and supported by affidavit, even if not deponed in the applicants' own joint affidavit.
Court orders
#- 1.Appeal allowed
- 2.Ruling of the High Court dated 29th January 2019 and delivered on 15th February 2019 set aside
- 3.Appellants' application dated 13th March 2017 allowed to the extent that the judgment of the High Court delivered on 18th November 2016 is reviewed and set aside
- 4.Matter remitted to the High Court at Kiambu solely to re-open the appellants' case from where it had reached, allowing the appellants and their witnesses to adduce evidence and be cross-examined, after which the High Court to render judgment
- 5.Each party to bear their own costs of the appeal and of the proceedings before the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Succession Cause No. 526 of 2006
- Jurisdiction invoked
- First appellate appeal from the High Court sitting in probate/succession jurisdiction under the Law of Succession Act (appellate jurisdiction over High Court succession rulings)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given difierent weight to that given by the judge to the various factors in the case.
We accordingly allow the appeal. We hereby set aside the ruling of the High Court dated 29th January 2019 and delivered on 15th February 2019.
We substitute therefor an order allowing the appellants application dated 13th March 2017 to the extent that the judgment of the High Court delivered on 18th November 2016 is hereby reviewed and set aside.
The matter is remitted back to the High Court at Kiambu for the purpose only of re-opening the appellants' case from where it had reached
This being a family matter, we order that each party shall bear their own costs of this appeal and of the proceedings before the High Court.
Issues in the judgment
#The judgment records the objectors' witness inconsistently as 'Joseph Kariuki Ndungu' in one passage and 'Joseph Kamau Ndungu' in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muongi & another v Muchiri (Civil Appeal 299 of 2019) [2025] KECA 312 (KLR)", Case Analysis (2025). Succession Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/312/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.