https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9190

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **HC. P&A CASE NO. 1B OF 2016** **IN THE MATTER OF THE ESTATE OF THE LATE DINAH MALABA ……………………….…. DECEASED** **AND** **WAFULA MALABA …… PETITIONER/RESPONDENT/1ST CONTEMNOR** **VERSUS** **RICHARD WANJALA MALABA …….…….. 1ST OBJECTOR/ PROTESTOR** **PATRICK MALABA KUYA ... 2ND OBJECTOR/ PROTESTOR/APPLICANT** **ANTONY WAFULA WABUKE on behalf of EVANS KISEMBE alias EVANS KISEMBE MALABA (deceased) …………… 3RD OBJECTOR/PROTESTOR** **AND** **JOHN LUBISIA MALABA ……….……. RESPONDENT/ 2ND CONTEMNOR** **RULING** 1. Before this court is a Chamber Summons dated 27th April 2026 brought **Pursuant to Rule 73 of the Probate and Administration Rules and Section 47 of the Laws of Succession Act, Section 1, 1A, 3 & 3A of the Civil Procedure Rules and Section 5 of the Judicature Act and Article 10, 48, 50 & 159 of the Constitution of Kenya** seeking the following orders; 2. **That pending the hearing of this Application Interpartes, the Respondents/ Contemnors or their agents be restrained from trespassing, planting, cultivating, putting up houses and or remaining on or interfering with LR NO. NDIVISI/MIHUU/121 particularly portioned utilized by the Applicant PATRICK MALABA KUYA totaling to 28 acres.** 3. **That pending the hearing and determination of this Application, the Respondents/ Contemnors or their agents be restrained from trespassing, planting, cultivating, putting up houses and or remaining on or interfering with LR NO. NDIVISI/MIHUU/121 particularly portioned utilized by the Applicant PATRICK MALABA KUYA totaling to 28 acres.** 4. **That the Respondents/ Contemnors WAFULA MALABA & JOHN LUBISIA MALABA herein be punished by this Court by being imprisoned for 6 months in jail for disobeying a valid Court order given by this Court on 29th November 2024.** 5. **That the OCS Webuye Police Station do enforce this order.** 6. **That costs be paid by the Respondents / Contemnors** 7. The application is premised on the grounds on the face of it and the facts deponed in the Supporting Affidavit of Patrick Wanjala Malaba sworn on 27th April, 2026. 8. Counsel for the Applicants Mr. Wamalwa R in his oral Representations stated that the Application dated 27th April 2026 it is coming up for directions. He stated that as he was confirming the filing of documents in the CTS, he bumped into some documents filed by the Respondents, some referred to as Replying Affidavits, and others as Further Affidavits. 9. Counsel for the Respondent Mr. Alovi stated that he filed a Replying Affidavit by the 2nd Respondent and a Further Replying Affidavit by the 1st Respondent. He prays that the matter be disposed of by way of written submissions and Mr. Wamalwa can be given leave to respond to the Replying Affidavit. 10. Mr. Wamalwa R in his rejoinder stated that the direction that the court gave was that a response be filed within 14 days. That he served the Respondents on 30th April 2026 and their Return of Service is filed. That Counsel has not officially served him with the documents that he chanced upon in the CTS. That the applicants were to file a Further Affidavit after being served with the Responses. He further stated that the Purported responses are in clear breach of the Court’s directions and he therefore prays that they be expunged from record and their Application be considered as unopposed and be allowed as prayed. He relied on the decision of **Ukwala Supermarket VS Kenindia Supermarket Ltd (2016) Eklr.** 11. Mr. Alovi in response confirmed that he did file the replies out of time and he apologized to Court and Counsel. He explained that his email had a problem which he discovered in the last week and that is when he called his clients to come to the office so that they prepare the Affidavits. He prayed for the Court’s indulgence to find that the Replying Affidavits are properly on Record. 12. The court in its determination noted that the directions were issued on 28th April 2026 which is more than a month ago. The court further noted that even after representations were made by Mr. Wamalwa R at the onset, that Counsel for the Respondents had failed to comply with the timelines of the court in the filing and service of the documents and that he just stumbled upon them this morning in the CTS portal. Counsel Mr. Alovi did not at all indicate to Court that his documents were filed late and seek the exercise of the court’s discretion to deem them to be properly filed. 13. Further, the court also notes that the said documents – being the Replying Affidavit and a Further Replying Affidavit by the Respondent are also not on file. Mr. Alovi only sought the indulgence of the court upon o further Representations by Mr. Wamalwa R seeking that the said documents be expunged from the court record and also at the prompting of the Court. 14. For this reasons, despite Counsel’s apology, it is my considerate view that the Respondents do not merit the indulgence of the Court for reasons that his conduct in the late filing of his responses coupled with his failure to serve his counterpart does not demonstrate the requisite diligence and good faith for this reason, I do not find merit in the prayer that the Replying Affidavit and the Further Replying Affidavit be deemed to be properly filed even though filed out of time. They are therefore expunged from the record. 15. As a result, then, the Application dated 27th April 2026 now stands as unopposed and the same is accordingly allowed as follows; 16. **The Respondents/Contemnors or their agents are hereby restrained from trespassing, planting, cultivating, putting up houses and or remaining on or interfering with LR NO. NDIVISI/MIHUU/121 particularly portioned utilized by the Applicant PATRICK MALABA KUYA totaling to 28 acres.** 17. **The Respondents/ Contemnors or their agents are hereby restrained from trespassing, planting, cultivating, putting up houses and or remaining on or interfering with LR NO. NDIVISI/MIHUU/121 particularly portioned utilized by the Applicant PATRICK MALABA KUYA totaling to 28 acres.** 18. **Summons are now hereby issued to the Respondents/ Contemnors to appear before the Trial Court being HIGH COURT NO. 2 on 15th July 2026 and show cause why they should not be committed to Civil Jail as therein prayed for the reasons given.** 19. **That the OCS Webuye Police Station is now hereby directed to enforce this order.** **Read Dated and Signed at BUNGOMA on 4th day of June, 2026** **E. OMINDE** **JUDGE**