https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8160

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION CAUSE NO. 22 OF 2014** **IN THE MATTER OF THE ESTATE OF JORAM MWIMANI MUDALUNGU (DECEASED)** **THOMAS MWINAMI………………………………………..APPLICANT/ADMINISTRATOR** **AND** **MAURICE LIKARE……………….…………………………APPLICANT/ADMINISTRATOR** **VERSUS** **CEDRICK MWINAMI……………………………………………………………..PROTESTOR** **JARED MIHESO……………………………………………………………………PROTESTOR** **RULING ON APPLICATION DATED 30/12/2025** 1. The deceased, Joram Mwimani Mudalungu, died intestate on 29th January 2004. Succession proceedings were commenced and a grant of letters of administration was issued to Thomas Mwimani and Maurice Likare, both sons of the deceased. 2. Upon hearing the summons for confirmation of grant, a dispute arose regarding the composition of the estate and the identity of beneficiaries. The matter proceeded by way of protest lodged by Cedrick Mwimani, a son of the late Geoffrey Mudalungu, and Jared Miheso, a son of the late Moses Mwimani. 3. After considering the affidavits, documentary evidence and submissions by all parties, this Court delivered judgment on 28th November 2025. The Court found that parcels KAKAMEGA/SANGO/856 and KAKAMEGA/SANGO/858 had been transferred during the deceased’s lifetime as gifts inter vivos and therefore did not form part of the estate available for distribution. The Court further held that parcel KAKAMEGA/SANGO/1736 belonged to Thomas Mwimani personally and did not constitute estate property. 4. The Court identified the assets available for distribution as follows: 5. KAKAMEGA/SANGO/102; 6. KAKAMEGA/ISUKHA/SHITOTO/976; 7. KAKAMEGA/MURHANDA/64; and 8. KAKAMEGA/SANGO/5, 9. Excluding parcels KAKAMEGA/SANGO/856 and KAKAMEGA/SANGO/858. 10. The Court further ordered that the estate be distributed in accordance with Section 40 of the Law of Succession Act, taking into account the two houses of the deceased and the respective units within each house. 11. By the Notice of Motion dated 30th December 2025, Cedrick Mwimani seeks, among other orders, clarification of the judgment, stay of implementation, preservation orders in respect of KAKAMEGA/SANGO/5 and its derivative parcels, and directions regarding the implementation of the judgment. 12. The application is principally founded upon an alleged subdivision sketch dated 30th November 1989, which the Applicant contends demonstrates that parcel KAKAMEGA/SANGO/857 had been allocated to his late father, Geoffrey Mudalungu, during the deceased’s lifetime. 13. The application is opposed by the Administrators through a replying affidavit sworn on 21stJanuary 2026 and written submissions filed thereafter. 14. I have carefully considered the application, the affidavits on record, the annexures thereto and the submissions of the parties. **ISSUES FOR DETERMINATION** 1. The issues arising for determination are: 2. Whether the Applicant has established grounds for stay of implementation of the judgment. 3. Whether the Applicant is entitled to clarification of the judgment. 4. Whether the orders sought amount to a review or variation of the judgment. 5. What orders should issue as to costs. **ANALYSIS AND DETERMINATION** 1. **Whether the Applicant has established grounds for stay of implementation of the judgment** 2. The Applicant has not demonstrated that the Administrators have commenced implementation in a manner contrary to the judgment. Indeed, it is not disputed that no certificate of confirmation has been extracted and no subdivision has been undertaken. 3. The apprehension expressed by the Applicant is therefore speculative. 4. I find no sufficient basis for a stay order. 5. **Whether the Applicant is entitled to clarification of the judgment.** 6. This Court retains inherent jurisdiction under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to clarify its orders where ambiguity exists. 7. The judgment delivered on 28th November 2025 made specific findings that parcels KAKAMEGA/SANGO/856 and KAKAMEGA/SANGO/858 had been transferred during the deceased’s lifetime by way of gifts inter vivos and therefore did not form part of the estate. 8. The Court further identified KAKAMEGA/SANGO/5, excluding parcels 856 and 858, as part of the estate available for distribution. 9. The Applicant now relies on a subdivision sketch allegedly showing that parcel KAKAMEGA/SANGO/857 had similarly been allocated to the late Geoffrey Mudalungu and parcel KAKAMEGA/SANGO/859 to Dinah Mida. Such evidence was not before the Court when judgment was rendered. 10. To the extent that the Applicant seeks a declaration that parcel KAKAMEGA/SANGO/857 devolves exclusively to the heirs of Geoffrey Mudalungu and is excluded from the estate, the Court finds that such an order would substantially alter the findings and distribution ordered in the judgment. That relief cannot be granted through an application framed as one for clarification. 11. The Applicant contends that newly discovered evidence demonstrates that parcel 857 was a perfected gift inter vivos which ought to have been excluded from the estate, the proper remedy lies in an application for review meeting the requirements of the law, or an appeal where appropriate. 12. However, I agree that clarification is necessary regarding the mode of distribution under Section 40 of the Law of Succession Act. 13. The judgment intended distribution according to houses under Section 40. The First House comprised eight (8) units, being the surviving wife and seven children. 14. The Second House comprised five (5) units, being the surviving wife and four children. Distribution is therefore to be undertaken in accordance with Section 40 of the Act, first by allocating the estate between the houses proportionately according to their units and thereafter distributing each house’s entitlement among the members of that house in accordance with the judgment. 15. For avoidance of doubt, the judgment did not declare parcel KAKAMEGA/SANGO/857 to be excluded from the estate. Nor did it make any finding regarding parcel KAKAMEGA/SANGO/859. Those matters were not determined in the judgment. 16. Accordingly, the Court makes the following orders: 17. The prayer for stay of implementation is declined. 18. The prayer seeking declarations that parcel KAKAMEGA/SANGO/857 does not form part of the estate and devolves exclusively to the heirs of Geoffrey Mudalungu is declined. 19. The Court clarifies that the judgment dated 28th November 2025 directed distribution in accordance with Section 40 of the Law of Succession Act, namely distribution between the houses according to their respective units and thereafter within each house. 20. The Administrators shall proceed with extraction of the Certificate of Confirmation of Grant in conformity with the judgment and this clarification. 21. The Applicant shall be at liberty, to pursue review or appeal regarding any newly discovered evidence relating to parcel KAKAMEGA/SANGO/857. 22. Each party shall bear its own costs. It is so ordered. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE,2026.** **S.N.MBUNGI** **JUDGE** **In the Presence of:-** CA: Zilda/Velma Mr. Mukavale J for Administrator present. Appellant present online.