https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8196

In re Estate of Mwenje (Deceased) (Succession Cause 1 of 2017) [2026] KEHC 8196 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 8196 (KLR) Republic of Kenya In the High Court at Embu Succession Cause 1 of 2017 RM Mwongo, J June 10, 2026 N THE MATTER OF THE ESTATE OF ALEXANDER KANGETHE MWENJE (DECEASED) Between Purity Rose Njagi 1st Applicant Lucy Wanja Runyenje 2nd Applicant Janet Mukami Mwenje 3rd Applicant and Naomi Marigu A. Mwenje 1st Respondent Peter Wachira Mwenje 2nd Respondent Ruling 1.The substantive matter pending before Court is a Chamber Summons for Revocation of Grant dated 25th September, 2024 by the applicants Purity, Lucy and Janet. The confirmed grant sought to be revoked is dated 4th August, 2022 in which the Respondents are the Administrators. Following that application court orders dated 28th October 2020, restraining the Respondents from selling or transferring any property of the estate were issued, and are still in place. Chamber Summons 2.The applicants filed summons dated 27th January 2026 seeking the following orders:1.That the Replying Affidavit dated 25th November 2024 sworn jointly by the Respondents together with all annexures be expunged from the record of this Honourable Court;2.That the Witness Statement of the 2nd Respondent dated 2nd April 2025 be expunged from the record of this Honourable Court;3.That the joint affidavit dated 25th November 2024 sworn by Betty Wanjiru Mwenje and Shelmith Kaari be expunged from the record of this Honourable Court;4.That the three affidavits dated 16th November 2017 individually sworn by the applicants and filed by the Respondents be expunged from the record of this Honourable Court;5.That the Respondents be prohibited from relying on or referring to the said documents in any proceedings before this Honourable Court; and6.That costs of this application be borne by the Respondent. 3.The application is founded on grounds that on 22nd January 2026 as they closed their case, the respondents availed 6 documents for production into evidence. That these documents were unauthenticated, unreliable and therefore, inadmissible as evidence. The applicant referred to an affidavit dated 25th November 2024 sworn by the 1st respondent which was commissioned in Embu at a time when she, the deponent, was admitted at Nairobi Hospital. A discharge summary from the said hospital was produced showing that the 1st respondent was discharged 3 days after the affidavit was sworn. 4.It was also their case that the 1st respondent’s signature on her replying affidavit is visibly different from her usual known signature. They stated that the 2nd respondent’s witness statement was signed off with the typed initials ‘PWM; but in another document that he had purportedly signed, there was a different signature altogether. That this raised serious doubts as to the legitimacy of the documents presented as evidence. They stated that even with these inconsistencies in the documentation, the 1st respondent was not called as a witness. It was also their contention that the joint affidavit by Betty Wanjiru Mwenje and Shelmith Kaari dated 25th November 2024 was indicated to have been sworn in Embu at a time when they were in the USA, yet it was not notarized as required by law. That on this basis, the joint affidavit is unreliable and should not be admitted as evidence. 5.They stated that the 2nd respondent talked the applicants into signing 2 more affidavits saying that they were only for the purpose of appointment of administrators but this was not true. They innocently signed them but they later learned that the affidavits were commissioned in Embu without their consent. When the matter was coming up for hearing, despite the fact that the court asked for the presence of all the beneficiaries, the applicants claimed that they were never informed of the court date, otherwise, they would have physically attended court. Application to Expunge Replying Affidavits from the Record 6.The respondents filed replying affidavits but the applicants assert that these had been filed more than 60 days after service. They prayed that the replying affidavits be expunged from the record. On their part, the respondents’ counsel prayed that the replying affidavits be admitted out of time because of the seriousness of the application. That his clients were unavailable and that striking out the replying affidavits had dire consequences. He prayed that the respondents be heard. The applicant told the court that if the replying affidavits are expunged, no prejudice will be suffered by the respondents since they will still have a chance to be heard. Issue for Determination 7.The issue for determination is whether the replying affidavits should be expunged from the record for being filed out of time and without the leave of court. Analysis and Determination 8.The application dated 27th January 2026 was served upon the respondents timeously. The 2 replying affidavits on record were filed on 2nd April 2026. 9.Order 51 Rule 13(3) of the Civil Procedure Rules provides that“The application shall be served on respondent together with the list of authorities, if any, not less than seven clear days before the date of hearing.” 10.There is an affidavit of service on record, indicating that the application dated 27th January 2026 was served upon the respondents the following day. 11.According to the court proceedings, the application was heard on 15th April 2026 and this was the date when the applicants’ advocate indicated that he had been served with the replying affidavits the day before the hearing. The respondents’ advocate did not contest the applicant’s claim that they had filed the replying affidavits late more than 60 days from the date of service. They prayed for leave to have the replying affidavits admitted out of time, at that point. 12.Order 51 Rule 14 of the Civil Procedure Rules Provides provides:“(1)Any respondent who wishes to oppose any application may file any one or a combination of the following documents —(a)a notice preliminary objection: and/or;(b)replying affidavit; and/or(c)a statement of grounds of opposition;(2)the said documents in subrule (1) and a list of authorities, if any shall be filed and served on the applicant not less than three clear days before the date of hearing.(3)Any applicant upon whom a replying affidavit or statement of grounds of opposition has been served under subrule (1) may, with the leave of the court, file a supplementary affidavit.(4)If a respondent fails to file to comply with subrule (1) and (2), the application may be heard ex parte.” Conclusion and Disposition 13.There was no affidavit of service on record to prove that the replying affidavits had been served upon the applicants at least 3 clear days before the hearing. The object of the 3 days timeline is to obviate an ambush. 14.Order 51 of the Civil Procedure Rules does not prescribe particular timelines for filing of replying affidavits, so long as they are duly filed and served 3 days prior to the hearing date. In this case, the replying affidavits were filed before the hearing, even according to the court records. However, they were served upon the applicants painfully close to the hearing date itself. 15.Nevertheless, the court has considered the overriding objective under section 1A, 1B and 3A of the Civil Procedure Act, and Article 159 of the Constitution in exercise of the wide discretion of the High Court. Moreover, the Constitution under Article 48 guarantees all persons access to justice. It would be an extreme action for the court to expunge the replying affidavits in the circumstances. 16.Accordingly, the replying affidavits are hereby admitted into evidence. The application dated 27th January 2026 shall be heard expeditiously. 17.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 10TH DAY OF JUNE, 2026.R. MWONGOJUDGEDelivered in the presence of:1. Asitiba for the Applicants2. Munene Njiru for the Respondents3. Francis Munyao - Court Assistant