https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7559

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **SUCCESSION CAUSE NO.205 OF 2013** **IN THE MATTER OF ESTATE OF MWENGA KYALO (DECEASED)** **NDUNDA MWENGA ………………..1ST ADMINISTRATOR/APPLICANT** **JUSTUS MUTETI MWENGA ……...2ND ADMINISTRATOR/APPLICANT** ***VERSUS*** **JOSEPH KYALO WAMBUA ………………………………...PROTESTOR** **RULING** 1. In the Notice of Motion dated 28th October 2025 the 1st and 2nd Administrators/Applicants seek an order for re-opening of this succession cause for reason that the beneficiaries of this estate have reached a mediation settlement agreement which necessitate the filing of an application for summons for confirmation of grant. They also sought an order for transfer of the succession cause to the High Court at Makueni, which order was however rejected by this court on account of the age of the cause and the need for expeditious disposal of the same. 2. In opposition to the application, the Protestor filed ‘a response’ and a further affidavit. 3. Thereafter this court gave directions that the application would be heard by way of written submissions. The same were duly filed. **Analysis and determination** 1. I have considered the application, the grounds thereof, the affidavits and rival submissions of learned Counsel for the parties and in my view the application is misconceived. I say so because from the record this cause has never been closed or dismissed as would cause this court to reopen it. In his order dated 18th July 2022 Odunga J, as he then was, simply stated: “***Court mediation settlement agreement dated 25th January 2021 is hereby adopted as the order of this court.”*** 1. That being the position, it only behoved the Administrators to move the court by filing summons for confirmation of the grant in line with the mediation settlement agreement to which anyone not in agreement would have been at liberty to file a protest. The application brought vide the Notice of Motion dated 28th October 2025 was unnecessary as nothing prevented the Administrators from so doing. In the premises the application is struck out and should there be no Summons for Confirmation filed within the next sixty (60) days from today, the grant issued herein shall stand revoked under **Section 76(d) (i) of the Law of Succession Act** which gives the court power to revoke a grant where no Summons for Confirmation is brought within a year of the grant having been issued. 2. In regard to costs, this being a family matter, the order that commends itself to me, is that each party shall bear their own costs. Orders accordingly. Ruling signed, dated and delivered virtually via Microsoft teams on this 28th day of May, 2026. **E. N. Maina** **Judge** **In the presence of:** Mr. Odero for Mutua Makau for the Protestor Dr. Mutiso for Administrators Mary - Court Assistant/Interpreter