Francis Wesonga Odipo & Another v Ali Omondi Malachi & Another
The bottom line
#Kenya's Court of Appeal ruled that succession courts cannot decide land trust claims by outsiders — those disputes belong in the Environment and Land Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal from the High Court exercising original jurisdiction in a succession matter lies as of right to the Court of Appeal without leave
- 2.Whether the High Court had jurisdiction to determine the 1st respondent's claim that the deceased held the suit land in trust for his father
- 3.Whether the distribution of the estate by the trial court was lawful and reasonable
Key legal issues
#Whether leave is required to appeal to the Court of Appeal from a High Court decision in exercise of original jurisdiction in succession matters
No leave is required; the appeal lies as of right, following the Supreme Court's decision in Wandi vs Muchira, which binds this Court
The Supreme Court in Wandi vs Muchira held that neither the Law of Succession Act nor the Probate and Administration Rules contain any express provision requiring leave for such appeals. Where Parliament intends to require leave it does so expressly; the requirement cannot be implied from statutory silence. A restrictive interpretation denying a right of appeal would undermine equality and access to justice under Articles 27(1) and 20(3)(a) of the Constitution. The Court of Appeal is bound by that decision.
Whether the High Court had jurisdiction to determine the 1st respondent's claim founded on an alleged customary trust over land registered in the deceased's name
The succession court lacked jurisdiction; the claim metamorphosed into a land entitlement dispute for the Environment and Land Court
A succession court's primary jurisdiction is identifying and distributing a deceased's estate to rightful beneficiaries. Where a claimant is not a beneficiary but asserts outright ownership of the deceased's land through a trust, the dispute becomes one of title to land, falling within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution. The trial court erred in examining the trust and distributing land to the 1st respondent on that basis.
Whether the jurisdictional objection could be raised for the first time on appeal
Yes; jurisdiction can be raised at any stage, even where a party initially admitted facts purporting to clothe the court with jurisdiction
Relying on Jamal Salim v Yusuf Abdulahi Abdi and Macharia v Kenya Commercial Bank, the court held that jurisdiction flows from the Constitution or legislation, cannot be conferred by consent or acquiescence, and a jurisdictional defect renders any resulting judgment a nullity. Although the appellants did not raise the objection in the trial court, the objection was properly before the appellate court.
Legal principles established
#- There is no legal basis for requiring leave as a prerequisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter
- A succession court lacks jurisdiction where a claim involves persons who are not beneficiaries or third parties claiming outright ownership of the deceased's land, including on the basis of a trust
- Jurisdiction can be raised at any stage of the proceedings and cannot be conferred by consent or acquiescence
Court orders
#- 1.The judgment delivered on 17th June 2020 by the High Court in Kakamega Succession Cause No. 595 of 2009 is set aside in its entirety
- 2.The matter is remitted back to the High Court for further directions
- 3.Each party shall bear the costs of the proceedings in the trial Court and of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega Succession Cause No. 595 of 2009
- Jurisdiction invoked
- First appeal from the High Court exercising original jurisdiction under the Law of Succession Act; appealability as of right per Wandi vs Muchira [2026] KESC 29 (KLR)
Relief refused
#Determination of the substantive distribution of the estate on appeal
The preliminary question of the 1st respondent's entitlement based on trust must first be determined in the correct forum, the Environment and Land Court
Costs
Each party shall bear the costs of the proceedings in the trial Court and of this appeal
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.
We accordingly set aside the judgment delivered on 17th June 2020 by the High Court in Kakamega (L.N.Njagi J.) in Kakamega Succession Cause No. 595 of 2009 in its entirety, and remit the matter back to the High Court for further directions.
As this is an appeal involving family members, each party shall bear the costs of the proceedings in the trial Court and of this appeal.
We are bound by the decision of the Supreme Court on this issue, and accordingly find that this appeal is properly before us, and no leave was required to lodge it in this Court.
where the claim involves persons who are not beneficiaries or third parties claiming outright ownership of the deceased's land, including on the basis of a trust, the succession court lacks jurisdiction since the dispute then metamorphosizes to one of entitlement and title to land, rather than devolvement of the estate to the rightful beneficiaries.
A probate court’s mandate is administration and distribution of estates; it does not, as a general rule, determine contested questions of title or trust over land except to the extent necessary to facilitate distribution where rights are undisputed.
Issues in the judgment
#The 1st respondent's father is referred to inconsistently as Malichi Wangoma and Bakari Malichi
The coram lists 'RADIDO JJ.A' but the signature block reads 'RADIDO S. OKIYO'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Wesonga Odipo & Another v Ali Omondi Malachi & Another", Case Analysis (2026). Civil Appeal No. E021 of 2026 (Formerly Kisumu Civil Appeal No. E093 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2023/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.