https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8984

In re Estate of Aluda (Deceased) (Succession Cause 408 of 1998) [2026] KEHC 8984 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 8984 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 408 of 1998 S Mbungi, J June 10, 2026 Between Beatrice Lukalo 1st Petitioner Margaret Odolika 2nd Petitioner and Tom Lukalo Objector Ruling 1.The deceased, Ezekiel Lukalo Aluda, died intestate. These succession proceedings were commenced for the administration and distribution of his estate. The matter has had a long and protracted history. It was substantially heard by Hon. Justice W. Musyoka, who rendered a judgment identifying the beneficiaries and some of the estate assets available for distribution. 2.However, before rendering final orders on distribution, the learned Judge identified outstanding issues requiring further evidence and clarification, particularly concerning land parcel Trans Nzoia/Kipsoen/232 and the circumstances surrounding transfers to third parties therefrom. The parties were directed to furnish additional information to enable the court conclusively determine those matters before final distribution. 3.Subsequently, the matter came before Hon. Justice P.J. Otieno, who delivered a ruling on 4th February 2025 and proceeded to distribute the estate. 4.Aggrieved by that ruling, the Applicant filed the Notice of Motion dated 9th December 2025 seeking, inter alia:i.Stay of execution of the orders issued on 4th February 2025;ii.Review, variation or setting aside of the said ruling;iii.Referral of the file for completion of the judgment that had been partly delivered by Hon. Justice W. Musyoka; andiv.Costs. 5.The application is supported by the affidavit sworn by the Applicant and the written submissions filed on his behalf. The Respondents opposed the application through a replying affidavit and written submissions. Issues for Determination 6.The issues arising for determination are:a.Whether this Court has jurisdiction to entertain the application for review;b.Whether the Applicant has established grounds for review of the ruling delivered on 4th February 2025;c.Whether the orders made on 4th February 2025 ought to be reviewed or set aside;d.Whether the Applicant is entitled to the reliefs sought; ande.Who should bear the costs of the application. 7.Before considering the merits of the application, the Court must satisfy itself that it is properly seized of jurisdiction. 8.The orders sought to be reviewed were issued by Hon. Justice P.J. Otieno on 4th February 2025. The present application has come before this Court following the transfer of the learned Judge from the Kakamega High Court Station. 9.Order 45 Rule 2 of the Civil Procedure Rules provides:“An application for review of a decree or order of a court shall be made only to the judge who passed the decree or made the order sought to be reviewed, or if he is no longer attached to the court station, or is absent for a period of three months after the application is lodged, or is precluded by other cause for a period of three months after the application is lodged, such application may be heard by any other judge of the court attached to that court station.” 10.The record reflects that Hon. Justice P.J. Otieno has since been transferred from this station and is therefore no longer attached to this Court. Consequently, this Court is properly seized of jurisdiction under Order 45 Rule 2 of the Civil Procedure Rules to hear and determine the present application. 11.I therefore proceed to consider the merits of the application. Analysis and Determination 12.The jurisdiction of this Court to review its own orders is founded on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules as read together with Rule 63 of the Probate and Administration Rules. 13.Order 45 Rule 1 permits review where there is discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason. 14.In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal stated:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court.” 15.Similarly, in Nyamogo & Nyamogo Advocates v Kogo [2001] EA 173, the Court held that an error apparent on the face of the record must be obvious and self-evident. 16.Further, in Pancras T. Swai v Kenya Breweries Limited [2014] eKLR, the Court of Appeal held that the phrase “any other sufficient reason” should be liberally construed where the interests of justice so require. 17.I am satisfied that this Court is exercising review jurisdiction and not appellate jurisdiction. Whether Trans Nzoia/Kipsoen/232 was omitted from distribution 18.The Applicant argues that Justice Musyoka expressly identified Trans Nzoia/Kipsoen/232 and the resultant acreage thereof as requiring further inquiry before final distribution. 19.It is evident that the learned Judge required additional information regarding transfers affecting that property and whether proceeds thereof should be treated as gifts inter vivos. 20.The ruling delivered on 4th February 2025 did not conclusively address those issues. The Court agrees that there remained unresolved questions concerning the property before final distribution could properly be undertaken. 21.This ground has merit. Whether the Court relied on evidence of Jethro E.A. Gwengu 22.The Applicant contends that the ruling relied on evidence attributed to one Jethro E.A. Gwengu, who was neither a witness nor a party to the proceedings. 23.The Court has perused the record and notes that the Applicant raises a legitimate concern regarding the evidentiary foundation of certain findings. While the extent of reliance upon such material cannot be conclusively determined from the present application alone, the issue warrants reconsideration in the interests of a fair and complete determination. Whether N. Maragoli/Kisatiru/1394 was allocated to a deceased beneficiary 24.The Applicant submits that parcel N. Maragoli/Kisatiru/1394 was allocated to Charles Lukalo despite his having died and been substituted by his widow, Joyce Mugailisi Kisanya. 25.The record includes documentation demonstrating that substitution had been sought prior to the ruling. If indeed the parcel was distributed directly to a deceased beneficiary, that would amount to an apparent error on the face of the record. 26.This ground is merited. Whether the acreage of N. Maragoli/Kegondi/471 was incorrectly stated 27.The Applicant contends that the parcel measures 0.5 hectares and not 1.2 hectares as stated in the ruling. 28.The size of a parcel of land is a matter capable of objective verification from official land records. Since acreage directly affects distribution, any discrepancy is material and requires reconsideration. 29.This ground also raises sufficient cause for review. Whether some beneficiaries were omitted from distribution 30.The Applicant complains that Kennedy Lukalo, Harriet Lukalo, Beverline Gonya Mugutu and Beatrice Kavulani were omitted from the final distribution despite being identified as beneficiaries. 31.The Court notes that Justice Musyoka identified beneficiaries of the estate and no order excluding the persons named by the Applicant has been brought to the Court’s attention. 32.If beneficiaries were identified but omitted without explanation, such omission would substantially affect the legality and fairness of the distribution. 33.This ground has merit. Whether issues reserved by Justice Musyoka remained unresolved 34.The central complaint in this application is that Justice Musyoka did not conclude distribution because he required further evidence on matters he considered critical to the final determination of the estate. 35.The Court has carefully reviewed the judgment and is satisfied that several issues were expressly reserved for further consideration before final distribution. The record does not demonstrate that those issues were fully addressed before the ruling of 4th February 2025 was delivered. 36.I therefore find that the Applicant has established sufficient reason within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. Whether the file should be returned to Justice Musyoka 37.The Applicant asks the Court to direct that the file be returned to Hon. Justice W. Musyoka for completion of the judgment. This Court lacks jurisdiction to direct that a matter be heard by a specific Judge.The appropriate course is to place the file before the Presiding Judge for administrative directions. 38.Having considered the application, affidavits, submissions and the entire record, I am satisfied that the Applicant has demonstrated sufficient reason to warrant review. 39.The matters raised concern the completeness of the distribution process, the identification of beneficiaries, the treatment of estate assets and the implementation of the estate. These are fundamental matters that must be conclusively determined before the estate can be finally distributed.40 40.The interests of justice require that the outstanding issues identified in the proceedings be addressed before implementation of the distribution. 41.Accordingly, I make the following orders:a.The Notice of Motion dated 9th December 2025 is hereby allowed.b.There shall be a stay of execution and implementation of the ruling and consequential orders delivered on 4th February 2025 pending further directions of the Court.c.The ruling delivered on 4th February 2025 is hereby reviewed and set aside to the extent that it concerns the final distribution of the estate.d.The Certificate of Confirmation of Grant issued pursuant to the ruling of 4th February 2025 is hereby vacated.e.The Deputy Registrar shall place the court file before the Presiding Judge of the High Court at Kakamega for directions regarding the hearing and determination of the outstanding issues identified in the judgment of Hon. Justice W. Musyoka.f.Parties shall be at liberty to file such further affidavits and documentation as may be necessary to address the unresolved matters relating to the estate.g.Each party shall bear his or her own costs of the application.h.Mention 30.6.2026 before Deputy Registrar.i.Right of Appeal 30 days DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaApplicant absent.Advocate absent.Court Assistant to upload the ruling on the CTS forthwith.