Muthamia & another v M’ebuthania (Civil Appeal 267 of 2019) [2026] KECA 264 (KLR) (13 February 2026) (Judgment)
- Court
- Court of Appeal
- Case number
- 264
- Citation
- [2026] KECA 264 (KLR)
- Decided
- 13 February 2026
The appeal has merit, the ruling of the High Court is set aside, and the matter is remitted to the High Court for hearing.
Facts
The 1st appellant petitioned for letters of administration intestate, which were revoked by the High Court in favor of the respondent. The 2nd appellant claimed the suit property was his, but the High Court did not address this claim.
Issues
- Whether the respondent proved a marriage to the deceased under Meru customary law
- Whether the High Court erred in failing to determine the 2nd appellant's claim under section 93 of the Law of Succession Act
Reasoning
The High Court relied solely on affidavits and witness statements without viva voce evidence to establish the alleged elements of a Meru customary marriage, which is a weighty and contested factual issue. The High Court also failed to address the 2nd appellant's claim regarding the suit property.
Outcome
The appeal is successful, the High Court's ruling is set aside, and the matter is remitted to the High Court.
Orders
- The ruling of the High Court dated 28th February 2019 is hereby set aside
- The matter is remitted to the High Court for hearing
Remedies
- Each party shall bear its own costs of the appeal
Authorities cited
Legislation (1)
- Law of Succession Act
Cases cited (4)
- Joash Ochieng Ougo & another v Virginia Edith Wambui Otieno [1987] KECA 71 (KLR)
- Georey Mugambi & 2 other v David K. M’Mugambi & 3 others [1992] KECA 59 (KLR)
- Kimani V Gikanga [1965] EA 735
- Ephantus Mwangi & Another v Duncan Wambugu [1984] eKLR
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