Douglas Oribu Matoke (Suing Through his Attorney Samuel Mabeya) v William Sagini Oribu

Instead, the respondent had the plot included in Parcel numbers Wanjare/Bogiakumu/2004 and 6245 (Parcel Nos. 2004 and 6245) respectively and registered them in his name. 3. The appellant therefore led the suit before the trial court through his attorney, Samuel Mabeya Oribu, also a brother to the deceased and the respondent, and sought a declaration that the plot in Parcel Nos. 2004 and 6245 was part of the estate of the deceased and an order compelling the respondent to transfer the plot from Parcel Nos.2004 and 6245 to him and to account for and pay the death gratuity benets he received. 4. The Defendant led a statement of defence dated 12th July 2016 denying the appellant’s claim. He averred that he acquired the Parcel Nos. 2004 and 6245 in his individual capacity and not in his capacity as the administrator of the estate of the deceased. He also denied that there was an agreement between him and the appellant that he would pursue and have the Plot transferred to the beneciaries of the deceased’s estate. 5. In its judgment and decree dated 29th July 2021, the trial court dismissed the appellant’s suit as we stated earlier, holding that the appellant did not established that the Plot formed part of Parcel Nos. 2004 and 6245 since there was no link between the Plot and LR No. Wanjare/Bogiakumu/458 (Parcel No. 458), except the existence of a structure on the land which was not sucient to conclusively establish the appellant's claim that the Plot was part of Parcel Nos. 2004 and 6245. The trial court further held that the dispute touched on the administration of the deceased's estate and therefore the proper forum for determining the issue was through the Succession Cause. 6. Dissatised, the appellant lodged the instant appeal contending that the trial court erred in law and fact in: holding that the dispute had been instituted before the wrong forum or that it did not have jurisdiction; nding that the purchase of the Plot was not proved despite the evidence on record; rendering a decision contrary to the weight of the evidence on record; and failing to properly evaluate and appreciate the appellant's evidence in support of his case. The appellant urged the Court to allow the appeal, set aside the judgment and decree of the trial court and in place therefor, issue an order granting the reliefs he had sought before the trial court. 7. When the appeal came up for plenary hearing, Mr. Soire, learned counsel appeared for the appellant. There was no appearance for the respondent or his advocate despite ample evidence that they had been duly served by the Court. The respondent’s counsel had also not led written submissions as directed by the Deputy Registrar of this Court. 8. Mr. Soire submitted through his written submissions that the trial court fell into error when it held that the dispute ought to have been pursued through the Succession Cause rather than in the suit before it yet the Plot did not form part of the deceased’s free property as dened under section 3 of the Law of Succession Act since it had not been transferred into the deceased’s name before his death. In that respect, counsel argued that the trial court had jurisdiction to determine the dispute given that the appellant sought a declaratory relief. Counsel cited Johana Nyokwoyo Buti v Walter Rasugu Omariba (Suing through his attorney Beutah Onsomu Rasugu) & 2 others [2011] KECA 263 (KLR) for the proposition that a court vested with jurisdiction over a subject matter may entertain a declaratory suit notwithstanding the existence of other statutory remedies, and that a litigant ought not to be denied a hearing merely because he did not pursue alternative proceedings where the circumstances justify recourse to an ordinary civil action. 9. It was counsel’s further submission that the trial court misdirected itself when it held that the purchase of the Plot was not proved despite the evidence on record, including the sale agreements dated 4th January 1993 and 4th January 1998, respectively, receipts for rent and the transfer relating to the plot, the transfer application form, the testimony of PW1 who witnessed the sale transactions, and portions https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1923/eng@2026-09-25 2

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of the respondent's testimony acknowledging the existence of a structure on the Plot. Counsel took the view, that the totality of that evidence on record supported the appellant’s claim that the Plot was included in Parcels Nos. 2004 and 6245; that the respondent’s evidence was inconsistent in that although he admitted to the existence of the structure on the Plot, he still denied knowledge and location thereof. 10. Finally, counsel faulted the trial court for failing to appreciate and consider the appellant’s evidence as a whole and urged this Court to discharge its mandate by re-evaluating the evidence afresh and arrive at its own conclusions, and cited Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) [2022] KEHC 282 (KLR) in that regard. 11. This being a rst appeal, the duty of this Court is to reevaluate, reconsider and reanalyse the evidence itself and draw its own conclusions, though in doing so it should bear in mind that it neither saw nor heard the witnesses and should make due allowance in this respect. (Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123). 12. In Imanyara & 2 others v Attorney General [2016 KECA 557 (KLR) this Court stated as follows: “ (34) In a rst appeal, this Court is not bound necessarily to accept the ndings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. This Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” 13. We have considered the record, submissions by the appellant, the authorities cited and the applicable law. We discern two issues for determination, namely; whether the appellant proved on a balance of probability that there was a link between the Plot and Parcel No. 458 and whether the trial court had jurisdiction to hear and determine the dispute before it. 14. On the rst issue, the appellant testied through his attorney Samuel Mabeya that the deceased purchased the Plot from Christopher Orucho Miyoro (PW3) and paid the full purchase price of Kshs. 85,000 after which he took possession and started developing the Plot but he died before completing the construction and transferring the Plot into his name. Following the deceased’s demise, the appellant and the respondent petitioned for a joint grant of letters of administration intestate for the estate of the deceased in the Succession Cause but the Plot was excluded during the conrmation of the grant of letters of administration because it had not been transferred into the name of the deceased. The respondent who had bought two Plots (Nos. 16B and 17) adjacent to the Plot, while conducting survey and subdivision included the plot to his own Plot B.16 and had them registered in his name as Parcel No. 2004. 15. Pastor Zachariah Nyabaro Orwochi (PW2) who was staying in the respondent’s premises on Plot 16B at Gesonso market, testied that he was the Market Committee Secretary and he assisted in serving demand notices from the Municipal Council of Kisii to land owners but they protested because their plots did not fall under the Municipal Council. He testied that both the Plot as well as the respondent’s Plot 16B were part of Parcel No. 458; that he was present when the Surveyor subdivided the land into two parcels between 2012 and 2013 with one portion going to the respondent and the other portion to Charles Mutiti. He maintained that although the Plot and the respondent’s Plot No.16B were dierent, they were on the same title. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1923/eng@2026-09-25 3

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16. On his part Christopher Orucho Miyoro (PW3) testied that he sold the plot to the deceased in 1993 who paid the full purchase price of Kshs. 85,000; took possession and started constructing a building thereon but he died before completing the construction and transferring the Plot into his name. PW3 also sold to the respondent Plot No. 18 which abutted the road and was in front of the Plot. He maintained that he was still willing to transfer the Plot to the deceased’s family. 17. In his defence, the respondent testied that he purchased Plot No. B.16 from Kisito Ongeri on 2nd June 2008 and executed a sale agreement on the same day which was witnessed by PW1. The Plot B.16 was later registered in his name as Parcel No. 6245. He again purchased Plot No. D.17 from three brothers, Christopher Orucho Miyoro (PW3), Luka Mosomi and Francis Nchabo which was later registered in his name as Parcel No. 2004; that he processed title deeds for Parcel Nos. 2004 and 6245 in 1992 and 2008 respectively and that he got the title deed for Parcel No. 2004 in May 2013. According to the respondent, although when they petitioned for the grant of letters of administration for the deceased’s estate, they listed all the deceased’s assets including a market plot whose number was not given, the plot was not pointed out to him; that the plot mentioned in the succession Cause was not the same as the plot and that the parcels of land he purchased were separate and distinct from the plot. He admitted, however, that there was a structure on Parcel No. 2004 but he did not know who constructed; that the structure was not there when he purchased plots and it came up sometime after 2000 and that the suit was led when he started demolishing it. He maintained that there was no agreement requiring him to transfer a portion of Parcel Nos. 2004 and 6425 to the beneciaries of the deceased’s estate; that the deceased’s assets were distributed except the market plot and that the appellant did not le any objection in the Succession Cause regarding his failure to distribute any of the deceased’s assets to the beneciaries. 18. In its judgment the trial court acknowledged that indeed the deceased purchased the Plot from PW3 on the strength of the sale agreement dated 4th January 1993 which was supported by PW3 who conrmed that the deceased paid the purchase price in full but he died before the Plot was transferred to him. The trial court however observed that even though PW3 had stated in his witness statement that the Plot was also registered as Parcel No. 458, he denied this under cross examination. After again observing that the mutation forms the appellant produced indicated that Parcel No. 458 was subdivided in 1986 to give rise to Parcels No. 2003, 2004 and 2005, the trial court stated as follows: “ [13] 19. What is missing is the link between plot no. D.26 and parcel no. 458. Unfortunately, PW3 who sold plot D.26 to the deceased and who ought to have been able to conrm whether it was part of parcels number Wanajare/Bogiakumu/2004 and Wanjare/Bogiakumu/6245 did not make this clarication. Even though PW2 who is a former Secretary of the market committee tried to explain that there were some registered parcels of land that were assigned market plot numbers for purposes of collecting rates by the defunct Gusii County Council, there was no documentary evidence to back up his allegation.” The trial court then went on to conclude as follows: “ [14] The only hint that the deceased may have purchased the portion that was later registered as parcel No. Wanajare/Bogiakumu/2004 and Wanjare/ Bogiakumu/6245 is the structure standing on the said parcel. The Defendant admitted that it was his attempt to demolish the said structure that prompted the Plainti to le this suit. In the circumstances, I am unable to make https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1923/eng@2026-09-25 4

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a conclusive nding that the deceased’s portion measuring 70 feet by 120 feet is part of parcels number Wanajare/Bogiakumu/2004 and Wanjare/ Bogiakumu/6245.” 20. Our reevaluation of the evidence on record shows that indeed, the deceased purchased the plot from PW3 and put up a building thereon and the respondent also purchased Plot No. B.16 which was in front of the Plot. PW2 was clear that he was present when the survey and subdivision was conducted and that the Plot and Plot B.16 were dierent but they were derived from Parcel No. 458 and they were on the same title. 21. The respondent’s evidence agrees with that of PW2 that he embarked on the process of subdivision and that the two Plots he had purchased were eventually registered as Parcel Nos. 2004 and 6245 and that Parcel No. 2004 which came from Parcel No. 458.The documentary evidence similarly supports the fact that the root of Parcel Nos. 2004 and 6245 was Parcel No. 458. The trial court itself captured the fact that the mutation forms produced in evidence showed that Parcel No. 458 was sub-divided to give rise to Parcel Nos. 2003, 2004 and 2005. 22. The trial court, however, failed to appreciate vital documentary evidence to wit: the searches produced in the lists of documents. For instance, the search dated 22nd April 2013 showed that Parcel 2004 was a subdivision of Parcel No. 458 and was registered in the names of Christopher Orucho Miyoro (PW3) and Luka Misomi while the search dated 11th May 2016 showed Parcel No. 2004 was registered in the respondent’s name on 21st May 2013 and a title deed thereof was issued on 22nd May 2013. Another search also dated 11th May 2016 in respect of Parcel No. 6245 showed that it arose from the subdivision of Parcel No. 2005 and it was registered in the respondent’s name on 2nd August 2013 and a title deed was issued on the same day. This documentary evidence therefore links both Parcel Nos. 2004 and 6245 to Parcel No. 458 as their mother title. 23. The evidence of PW1 and PW3 was clear that the deceased constructed a building on the Plot while PW2 maintained that the Plot and the respondent’s Plot B.16 were on the same title. This evidence, coupled with the respondent’s admission that the structure was on Parcel No. 2004 which was a subdivision of Parcel No. 458, conclusively linked the Plot to Parcel No. 458 implying that the Plot was part of Parcel No. 2004. In that respect therefore, and from our own evaluation of the evidence on record, it is clear to us beyond peradventure that there is a link between the Plot and Parcel 458 contrary to the holding by the trial that there was no such link. This in our rm view, also justies the appellant’s further complaint that the trial court did not subject the whole evidence on record to an exhaustive evaluation, analysis and appreciation before coming to its conclusion that there was no link between the Plot and Parcel 458 to enable it to make a conclusive nding that the Plot is part of Parcels Nos. 2004 and 6245. 24. In civil proceedings the burden of proof is always on the plainti. In Anne Wambui Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another [2004] KECA 65 (KLR) this Court stated as follows: “ As a general proposition the legal burden of proof lies upon the -party who invokes the aid of the law and substantially asserts the armative of the issue. That is the purport of Section 107 (1) of the Evidence Act Cap 80, which provides: ‘ https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1923/eng@2026-09-25 5

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107 Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’ 25. In this case, although both the legal and evidential burden of proof was on the appellant, once the appellant discharged the legal burden through the evidence adduced, the respondent had a corresponding duty to adduce evidence in rebuttal: In other words, the evidential burden shifted to the respondent given the weight of the appellant’s evidence to rebut the appellant’s evidence that the Plot was part of Parcel Nos. 2004 and 6245. The respondent having arranged and had the Plots surveyed and titles deeds processed and registered in his name, and since the structure the deceased had put up on the plot ended up on Parcel No. 2004 which is in the respondent’s name, the burden shifted to him to explain how the Plot came to be on Parcel No. 2004 and consequently the whereabouts of the Plot. His admission that the structure was on Parcel 2004; that he did not know who constructed it remained unexplained casting doubt to his candidness. 26. Based on our own reevaluation and analysis of the evidence afresh, the irresistible conclusion to be drawn from that evidence is that the Plot formed part of the respondent’s Parcel Nos. 2004 and 6245. The appellant and the respondent as co- administrators indicated in the petition for the grant of letters of administration of the deceased’s estate that the deceased had a market plot and therefore the respondent could not turn around and claim that he was not aware of the plot. The respondent took advantage of his position as a co-administrator of the decease’s estate, the appellant’s absence and the fact that he had plots adjacent to the plot to have it merged with his own plots and registered in his name to the detriment of the beneciaries of the estate. 27. Although the trial court correctly found that the deceased purchased the Plot and put up a structure thereon, it nevertheless conated the issue and thereby erred in concluding that there was no link between the Plot and Parcel 458. On the other hand, the respondent as the co administrator of the deceased’s estate abused the trust bestowed on him by virtue of his position by illegally acquiring the Plot instead of tracing and having it brought to the deceased’s name or to his beneciaries. He must not be allowed to keep the Plot which he obtained in violation of his duty as co administrator of the deceased’s estate. 28. Turning to the issue of jurisdiction, the appellant faulted the trial court for holding that the dispute was not before the appropriate forum implying it did not have jurisdiction to hear the suit. The appellant submitted that since the Plot had not been transferred into the deceased’s name, it did not form part of his free property and therefore it could only be claimed through the suit before the trial court. The respondent had argued before the trial court that the issue of the Plot should have been raised in the Succession Cause and that the appellant did not raise an objection against the conrmation of the grant of letters of administration because of the exclusion of the Plot. 29. In addressing the issue, the trial court stated as follows: “ [15] Be that as it may, even assuming that the Plainti had proved that the Defendant had annexed the portion purchased by the deceased as part of his land, would this be the appropriate forum to seek redress? As correctly submitted by Counsel for the Plainti, section 94 of the Law of Succession Act makes it an oence to misapply the assets of a deceased person.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1923/eng@2026-09-25 6

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30. After reproducing section 94, the trial court then stated as follows: “ [16] 31. I am constrained to agree with counsel for the Defendant that this court is not the appropriate forum to deal with matters relating to disputes among co-administrators touching on the estate of a deceased person which they are charged with the responsibility of administering. The Plainti ought to have led his case in Nbi Succession Cause No. 152 of 2001 as the complaint by the Plainti is leveled against the Defendant in his capacity as one of the administrators of the estate of Daniel Matoke Oribu.” With respect, we do not agree with the trial court that it was not the proper forum for determining the dispute or that the complaint should have been raised through the Succession Cause. The evidence on record is clear that the Plot was not in the deceased’s name at the time of his death and that was why it was left out when the application for conrmation of the grant of letters of administration was made. The Law of Succession Act deals with the free properties of deceased persons, and in that regard, section 3 thereof denes free property as follows: “ free property", in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.” 32. The Plot having not been transferred into the deceased’s name; it could not be deemed to be his free property for purposes of distribution through the grant of letters of administration. Only properties that were already registered in his name at the time of death qualied as his free properties and any property that was yet to be transferred and registered in his name, were to be traced by the administrators of the estate and claimed through a normal suit on behalf of the estate and for the benet of the beneciaries of the estate. 33. In the present case, the claim was over the Plot, a piece of land the deceased had purchased that had been illegally taken by the respondent. It was a claim for land that could only be led before the trial court in exercise of its jurisdiction conferred on it by Article 162 (b) of the Constitution as read with section 13 of the Environment and Land Act. 34. The suit was properly led before the trial court by a beneciary of the estate for the recovery of the Plot and he did not sue the respondent in his capacity as a co- administrator of the estate. Being a beneciary of the deceased’s estate, the appellant had a right sue the respondent for depriving the beneciaries of the deceased’s estate the Plot. We are therefore satised that the trial court erred holding that it was not the proper forum and that the dispute ought to have been led in the Succession Cause. The only aspect of the claim that the trial court did not have jurisdiction to address was account and payment of gratuity benets. Even then, there was no evidence in support of that claim. 35. Ultimately, we are satised that the appeal has merit and is allowed. The judgment and decree of the trial court dated 19th July 2021 is hereby set aside and in place therefor, an order is hereby issued allowing the appellant’s suit before the trial court, save for the order for account and payment of gratuity. The appellant shall have costs of this appeal and the proceedings before the trial court. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ..................... https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1923/eng@2026-09-25 7

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JUDGE OF APPEAL E.C. MWITA ..................... JUDGE OF APPEAL B. ONGAYA ..................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1923/eng@2026-09-25 8

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