https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10767

In re Estate of Musungu alias Dismas Odhialo Musungu (Deceased) (Succession Cause 169 of 2012) [2026] KEHC 10767 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEHC 10767 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause 169 of 2012 E Ominde, J July 16, 2026 IN THE MATTER OF THE ESTATE OF MOHAMMED ODHIALO MUSUNGU alias DISMAS ODHIALO MUSUNGU (DECEASED) Between Jackton Tom Odhialo 1st Petitioner Derrick Odhialo 2nd Petitioner Silvester Saul Odhialo 3rd Petitioner and David Anunda Odhialo Objector Ruling 1.This matter comes up for ruling on an application dated 6th May 2026, filed by Jackson Tom Odhialo, one of the three confirmed administrators of the estate of the late Mohammed Odhialo Musungu alias Dismas Odhialo Musungu. 2.The application is supported by an affidavit sworn on 6th May 2026 by the applicant, and a further supplementary affidavit seeking an order of a declaration by the court that Dismas Odhialo Musungu, alias Dismas Mohammed Odhialo Musungu, and Mohammed Odhialo Musungu, refer to one and the same deceased person, so as to facilitate the transfer of titles at the Lands Office in respect of the various shares allocated in the Certificate of Confirmation of Grant herein issued on 7th May 2025. 3.The applicant avers that the distribution of the estate has already been effected pursuant to the Certificate of Confirmation of Grant, but that some beneficiaries are yet to receive their respective shares. That the Lands Office has declined to process the transfers on the grounds that the names of the deceased appearing on the succession documents differ from those appearing on the original title and has required proof that the deceased and the person named in the title are one and the same. 4.At the behest of the court, in proof thereof, the applicant produced a letter from the Office of the Assistant Chief of Mateka Sub Location Bungoma County dated 26th June 2026 and amended on 16th July 2026 at the instructions of the court to have a spelling error corrected states that the deceased, during his lifetime, converted to the Islamic faith and was thereupon given the name "Mohammed," and was consequently known and referred to interchangeably as Dismas Odhialo Musungu, Dismas Mohamed Odhialo, and Mohammed Odhialo Musungu thus confirming the assertion by the applicant. 5.I note, at the outset, a procedural irregularity that ought to be addressed for the record: the document before this court styled as an "application" is, in substance, an affidavit, unaccompanied by a notice of motion or chamber summons setting out the specific prayers sought and the provisions of the law under which they are brought. An affidavit is ordinarily a vehicle for evidence in support of an application; it is not, of itself, not an application. 6.However, and more particularly because the applicant is a layperson acting without evident legal representation, I will not visit this defect in form as guided by the provisions Article 159(2)(d) of the Constitution which enjoins courts to administer justice without undue regard to technicalities. I will therefore proceed and consider the gist and substance of the application as is. That said, the court had, on 25th May 2026, directed the attendance of the other two administrators so that the court satisfies itself that they had no objection to the orders sought. 7.This was a precautionary measure that the court deemed necessary for reasons that any order touching on the identity of a deceased and the consequent transfer of titles affects the interests of all beneficiaries named in the Schedule to the Certificate of Confirmation of Grant, and not the applicant alone. That direction has not been complied with. Upon being questioned by the court on why the other two administrators were not in court as directed, the applicant stated that most of the beneficiaries had sold their shares and so were not very interested any more in the proceedings before the court. 8.Having considered the explanation given, and in taking cognisance of the fact that this is an old matter, having been filed in the year 2012, and that the estate is at the very tail end of distribution the only hindrance to the issuance of the titles to the beneficiaries for the shares allotted to them is the discrepancy in the names of the deceased, and further, also taking cognisance of the fact that the distribution of the estate proceeded by way of a mediated settlement, I will give the applicant the benefit of the doubt and find that his explanation is plausible. 9.As regards the evidence of the changed identity of the deceased by way of the letter of the area Assistant Chief, confirming the deceased's conversion to Islam and consequent change of name, coming from a local administrator with knowledge of the deceased and his family, and is consistent with the averments made in the applicant's affidavits, which are themselves uncontroverted, I am satisfied that the same is credible evidence. I also note that no party, including the objector of record, has come forward to dispute the assertion that the names refer to the same person. 10.In light of the foregoing, I now hereby allow the Application by the Applicant as follows;1.That a declaration be and is now hereby issued that Dismas Odhialo Musungu, alias Dismas Mohammed Odhialo Musungu, and Mohammed Odhialo Musungu, refer to one and the same deceased person in Bungoma High Court Succession Cause No. 169 0f 2012. It is so ordered.2.The costs of the Application shall be in the cause READ DATED AND SIGNED AT BUNGOMA ON 16TH JULY 2026E. OMINDEJUDGE