https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8983

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION CAUSE NO. 290 OF 2001** **IN THE MATTER OF THE ESTATE OF THE LATE EZEKIEL WEKU OMWOMA (DECEASED)** **DAVID LUPELE OMWOMA & ANOTHER ………………………………….… PETITIONERS** **VERSUS** **ALFRED OMWOMA WEKU …………………………………………..………… PROTESTOR** **AND** **MARGARET KHASENYA OMWOMA & ANOTHER ……………………….. APPLICANTS** **RULING** 1. The Court is called upon to determine the Notice of Motion dated 29.1.2026 brought by the Applicants seeking, inter alia, orders to arrest delivery of judgment scheduled for 19th March 2026, to reopen the succession cause, to expunge certain affidavits on record, and to be allowed to file a protest to the summons for confirmation of grant. 2. The application is expressed to be brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Article 50(1) and 159(2)(d) of the Constitution, Order 51 of the Civil Procedure Rules, and Rule 73 of the Probate and Administration Rule. **Applicants’ Case** 1. The Applicants deponed that they are daughters of the deceased and beneficiaries of the estate. They stated that they had sworn affidavits dated 11th July 2023 and 16th September 2025 indicating that they did not seek a share of the estate, but that those affidavits were executed after being misled by the Petitioners. 2. They further stated that the Petitioners had promised to allocate them a share of the estate outside court but had since reneged on that promise. They contended that unless the cause is reopened, they stand to be disinherited. 3. They also stated that they were not accorded an opportunity to be heard orally and that the right to be heard is constitutionally guaranteed. 4. The application is opposed by protestor who contends that the application is an abuse of the court process made in bad faith, and intended to delay the judgment. **Issues for Determination** 1. The Court considers that the issues arising for determination are: 2. Whether the application is made in good faith or amounts to abuse of process 3. Whether the Court has jurisdiction to reopen the succession cause and arrest delivery of judgment 4. Whether sufficient grounds have been established to warrant reopening of the case 5. Whether the affidavits on record should be expunged **Analysis and determination** 1. **Whether the application is made in good faith or amounts to abuse of process** 2. The protestor submits that the application is an afterthought intended to delay the judgment and that one Applicant had previously renounced her interest in the estate through an affidavit sworn on 16th September 2025. 3. It is further alleged that the application is being driven by dissatisfaction with the likely outcome of the judgment. 4. The court notes that the abuse of court process was defined **in Muchanga Investment (Africa) Ltd{2009}KLR**where the court held that; ***‘Abuse of process includes using the court process to achieve improper purposes or to delay justice.’*** 1. Further***,*in Uhuru Highway Development Ltd v Central Bank of Kenya {1995-1998}2 EA 655,*it was held that litigation must come to an end and should not be used oppressively.*** 2. The court notes that succession disputes involve family property and court must carefully examine allegations of exclusion of inheritance rights before making final determination. 3. **Whether the Court has jurisdiction to reopen the succession cause and arrest delivery of judgment** 4. The principles governing reopening of a case were considered in **Shah v Mbogo,{1967 EA 116}**where it was stated that: ‘***The discretion of the court is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake…***’ 1. The Court also takes guidance from **Philip Chemwolo & Another v Augustine Kubende{1982 KAR 103},** where the court observed that: ‘***Blunders will continue to be made…and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merits.***’. 1. The Applicants contend that they were misled into renouncing their interest in the estate and that they now seek to assert their rights as beneficiaries. 2. The Court notes that the Applicants are daughters of the deceased and therefore entitled to a share of the estate under the law of succession. Excluding them without hearing their claim would raise serious questions of fairness and equality. 3. Further, Article 50(1) of the Constitution guarantees the right to a fair hearing, while Article 159(2)(d) enjoins the Court to administer justice without undue regard to procedural technicalities. 4. In **Patel v E.A. Cargo Handling Services Ltd{1974 EA 75}**, it was held that: ***‘The main concern of the court is to do justice to the parties…’*** 1. The Court is persuaded that failure to reopen the cause would occasion injustice to the Applicant 2. **Whether the Court has jurisdiction to reopen the succession cause and arrest delivery of judgment.** 3. The Court notes that Rule 73 of the Probate and Administration Rules preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice. 4. The scope of this power was addressed in **Re Estate of G.K.K**. (Deceased), where the Court held that: ‘***The court retains inherent jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court’*** Further Article 50(1) of the Constitution guarantees the right to a fair hearing, while Article 159(2)(d) 0bligates the court to administer justice without undue regard to procedural technicalities. 1. The Court therefore finds that it has jurisdiction to entertain the present application, including the power to reopen proceedings where justice so demands. 2. **Whether the Affidavits on record Should Be Expunged** 3. The Applicants seek to expunge affidavits allegedly sworn under misrepresentation. 4. The Court notes that evidence obtained through misrepresentation or deception may be disregarded where its admission would result in injustice. 5. In **Re Estate of Mwaura Mutungi (Deceased){2018 Eklr},** the Court emphasized the duty to ensure that all beneficiaries are properly accounted for before confirmation of grant. 6. Further, in Re Estate of Njenga Kabiru (Deceased)(2018),it was held that ‘***Affidavits obtained through misrepresentation may be re-exained where fairness demand***.’ 7. The Court is satisfied that the circumstances surrounding the impugned affidavits warrant further inquiry, which can only be achieved if the matter is reopened and the parties heard. 8. The Court has considered whether reopening the matter would occasion prejudice to the Petitioners or the Protestor. It finds that any prejudice can be mitigated by allowing all parties an opportunity to be heard and to cross-examine the Applicants on their claims. On the other hand, failure to reopen the matter would permanently shut out the Applicants from the estate. **Conclusion.** 1. The Court is satisfied that the Applicants have established sufficient grounds to warrant the exercise of its discretion in their favour. The interests of justice demand that they be accorded an opportunity to ventilate their claim. 2. Accordingly, the Court makes the following orders: 3. The delivery of judgment scheduled for 19th March 2026 is hereby stayed 4. The succession cause is hereby reopened 5. The Applicants are granted leave to file and serve their protest to the summons for confirmation of grant within fourteen (14) days 6. The Petitioners and the Protestor shall be at liberty to respond and cross-examine the Applicants 7. The question of expunging the impugned affidavits shall be determined upon hearing the protest. Hearing 15.10.2026. 8. Right of Appeal 30 days. 9. No orders as to costs. **DATED SIGNED, and DELIVERED in OPEN COURT at KAKAMEGA THIS 23RD DAY OF JUNE, 2026.** **S.N. MBUNGI** **JUDGE** **In The Presence of;** CA: Angong’a/Velma Mr. Mondia for the protestor.