https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9597

In re Estate of Mbevi (Deceased) (Succession Cause E010 of 2022) [2026] KEHC 9597 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9597 (KLR) Republic of Kenya In the High Court at Makueni Succession Cause E010 of 2022 JN Onyiego, J June 25, 2026 IN THE MATTER OF THE ESTATE OF THE LATE LABAN MUTAVI MBEVI - DECEASED Between Paul Mutavi 1st Objector Judy Mutile Weber 2nd Objector and Dorcas Syukwaa Mutavi 1st Administrator Shadrack Mutuku Mutavi 2nd Administrator Ruling 1.The Application for determination before me is dated 29/12/2025 filed under Certificate of Urgency. It is brought under Order 22 Rule 22, Order 45(1), Order 12 Rules 7 & 10 of the Civil Procedure Rules, Section 80 of the Civil Procedure Act, the provisions of the Law of Succession Act, Cap 160 Laws of Kenya and all other enabling provisions of the law. It seeks;a.Spent.b.That upon granting prayer (a) herein, this court be pleased to issue an order of stay of the order herein issued on the 15th day of December 2025 and dated 18th December 2025 pending the inter partes hearing of this Application.c.That the order issued on the 15th day of December 2025 and dated 18th December 2025 be reviewed.d.That the aforesaid order be set aside and the order(s) revoking the grant herein be as well set aside and the said grant be reinstated pending the hearing and determination of this application or pending any other directions as the court may issue to resolve the issues involved in this Petition. 2.The application is supported by the grounds on its face and the affidavit of the 2nd Petitioner, Shadrack Mutuku Mutavi, sworn on the same day. The gist of the application is that there is a glaring error on the face of the record preceding the issue of the order(s) dated 18/12/2025 (SMM I) and the deceased’s estate stands to suffer irreparably as there are active proceedings pending in other courts filed by the 2nd Petitioner seeking to prevent encroachment upon the estate. That, in the absence of a legal representative of the deceased’s estate, the adversaries in the matters pending in court are likely to apply for dismissal of the suit(s) on that technicality. 3.The 2nd Petitioner deposed that the Objectors filed an application dated 25/09/2025 which was responded to by the Petitioners and when the matter came up for mention for directions, the Objectors had changed legal representation. That the new Advocates Onyango Oballa & Co. Advocates indicated that they had instructions to file an application and they were granted leave to do so. That, they served their application dated 03/12/2025 a few minutes before the matter was called out. That, the 2nd Petitioner responded to the application through an affidavit sworn on 15/12/2025(SMM II). 4.That, the first error on the face of the record is that there is no determination of the Objectors’ application dated 25/09/2025 which still remains on record unwithdrawn. That, on the date the impugned orders were issued, no application was due for hearing but the matter was for directions on how the applications would be dispensed with. That, the application giving rise to the impugned orders was opposed hence the 2nd Petitioner was thrown out of the justice seat without being heard. 5.That, 2nd error is to the effect that during one of the mentions, this court informed parties that the grant had been revoked on 11/03/2025. That according to information from his Advocate, there is a process to be followed in obtaining grants of Letters of Administration and a major step towards that is to obtain consent of all the siblings/beneficiaries of the deceased by the Petitioners. That, all the deceased’s siblings including the 1st Objector executed a consent on 15/07/2022 and the same is in the court record. 6.That, if the applications were heard the way they were supposed to be, an opportunity would have been availed to the court to examine why other beneficiaries were contented and are still contented with the process. That, the court order shows that serious allegations of intermeddling, disposing and failing to render accounts were made against him yet the court proceeded to make those findings without any evidence in support. That, it would have been fair and just for the court to have an opportunity to interrogate those allegations instead of believing a mere application. 7.That, the orders have left the deceased’s estate exposed to danger in that there is a case pending before Makueni Chief Magistrate’s Court to wit ELC Case No. E023 of 2024(Shadrack M. Mutavi -vs- Simon Tama) in which he sued the Defendants for encroaching into the deceased’s estate. 8.He deposed that the primary duty of a succession court is to protect the property of a deceased person but as things stand now, there is no one to represent the estate. That, in all the Applications filed by the Objectors, there is no allegation of the Petitioners having made untrue statements or made any material non-disclosures to this court. That, the said applications are based on mere unproved suspicions. 9.The application was opposed through the Replying Affidavit of Paul Mutavi sworn on 17/02/2026 where he deposed that; he is the 1st Objector and has instructions to swear the affidavit on behalf of his sister, the 2nd Objector. That, they filed an application dated 25/09/2025 through the firm of V.O Makau who served the same upon the Respondent’s previous Advocates on record. That, when the said application came up for directions, they informed the court that they had changed representation to the firm of Onyango Oballa & Partners Advocates who indicated that they were abandoning the application dated 25/09/2025 and sought leave to file a new application the one dated 03/12/2026. 10.That, the Respondents were served with the new application and granted leave to put in a Replying Affidavit and by consent of the legal representatives, the new application was scheduled for hearing on 15/12/2026. That, on the said date, the Respondents did not send a representative despite the court placing the matter aside twice and no Replying Affidavit had been filed or served. That, when it got to almost 11.00am with no appearance and upon the court confirming that no Replying Affidavit had been filed on the e-filing platform, the court granted the orders sought in the new application as it stood unopposed. 11.That, the Applicants are misleading this court by stating that the application dated 03/12/2025 was not coming up for hearing on 15/12/2025 as directions for hearing on the said date had already been taken. That, this is a delaying tactic particularly by the 2nd Applicant who has been disposing off the estate for his own benefit. That, the orders dated 18/12/2025 are for preservation of the estate and are in no way prejudicial to the Applicants. That, there is no grant to be revoked as stated by the Applicants. That, the application dated 03/12/2025 sought substitution of Administrators and an account of the estate as the Applicants have been disposing the same without the consent or authority of the other beneficiaries. That, there was also a prayer for reinstatement of this succession cause as it had been dismissed on 11/03/2025. 12.In rejoinder, the 2nd Petitioner swore a Further Affidavit on 20/04/2026 where he deposed that the deceased had eight siblings including the Objectors herein. That, on 12/04/2026, all the other siblings executed and signed a document (SMM I) completely excluding themselves from the Objection herein. That, the Objectors are nothing but lone rangers basing their objection on malice because all material disclosures were made to the deceased’s beneficiaries including the Objectors. 13.It was contended that the application is not representative of the majority of the deceased’s beneficiaries and should be dismissed. 14.The Application was canvassed through written submissions. 15.It was submitted that the matter came up for mention on 13/02/2026 and directions were given that a Replying Affidavit be filed within 7 days from the said mention date. That, the 7 day period was to lapse on 25/02/2026 and further directions were that once all the parties have their documents in place, each should file their submissions. It was contended that this court should proceed in the manner that the application was unopposed. It was submitted that the Applicants are relying on the lengthy affidavit sworn by Shadrack Mutuku Mutavi. 16.It was submitted that the Respondents filed and served their Replying Affidavit dated 17/02/2025 and served via WhatsApp as per the attached Affidavit of Service. That, they were not served with the Applicants’ Further Affidavit or submissions until after doing a follow up on directions of this matter given the transfer of Justice T. Matheka and the Deputy Registrar not sitting on the date given for mention that they realized on the CTS portal that the Applicants had filed their Further Affidavit and submissions. That, they undertook to print, read and reply the said documents via these submissions. 17.It was submitted that the Further Affidavit was filed on 20/04/ 2026, two months after filing their submissions dated 23/02/2026 which is irregular and as such, the Further Affidavit should be expunged from the court records. 18.It was submitted that the Applicants have not demonstrated why the orders issued on 15/12/2025 should be reviewed. That, they have not given a substantive ground to warrant the said review. That, there is absolutely no prejudice to be suffered as the party representing the estate can always be amended and replaced by the new Administrators. That, the main aim and goal is preservation and defending the estate on behalf of the other beneficiaries. 19.It was submitted that the Applicants are seeking for the reinstatement of grant but there is no grant to be reinstated. That, the grant in this matter was never confirmed. That, the Applicants herein being the Administrators failed to attend court or update the other beneficiaries on the progress of the filed succession cause. That, the succession cause was dismissed before the said confirmation. 20.It was further submitted that the orders sought and granted on 15/12/2025 are for the benefit of all the beneficiaries i.e. substitution of the Administrators who are disposing the estate without the consent of all the beneficiaries. That, it is in the interest of the estate that the said orders be retained. 21.The record of 11/03/2025 shows that there was no appearance for any of the parties and as such, the grant was revoked and file marked as closed. That order has not been set aside to date implying that the grant is no longer existing. 22.On 04/11/2025, Mr. Matata was present for the Petitioners and Ms. Onyango indicated that she had come on record for the Objectors and had replaced the firm of V.O.N Makau. It was indicated that the application dated 25/09/2025 was for mention for directions and Ms. Onyango indicated that she needed to make amendments to the said application. The court informed parties that the grant had been revoked for non-appearance. The matter was given a further mention on 18/11/2025. 23.On 18/11/2025 Ms. Onyango was present and she indicated that she needed more time to get proper instructions. There was no appearance for Mr. Matata and the matter was given a further mention for 02/12/2025. 24.On 02/12/2025, Ms. Onyango was present and she indicated that the application dated 25/09/2025 was filed by V.O.N Makau and that she was seeking to amend the same in three days. Again, there was no appearance for the Administrators. The matter was given a further mention on 05/12/2025. 25.On 05/12/2025, Ms. Onyango informed court that she had filed an application dated 03/12/2025 and had served. Mr. Matata was present and he informed court that he had just been served with the application and needed to consult his client. Ms. Onyango stated that the application was not new and prayed for a temporary injunction. Mr. Matata sought 5 days to respond and was granted the 5 days to file and serve. A further mention was given for 15/12/2025. 26.On 15/12/2025, Mr. Matata was not present and Ms. Onyango informed court that she had not been served with a response to the application dated 03/12/2025. The court confirmed that there was no response on CTS and proceeded to allow the application as unopposed. 27.Having looked at the application, response, rival submissions and entire record, the only issue for determination is whether the Application is merited. 28.With regard to the prayer for review, the Applicants argued that there are errors on the face of the record. That, the application dated 25/09/2025 by the Objectors has never been determined and is still pending. 29.Order 45 relating to review is one of the Civil Procedure Rules (CPR) imported into succession practice by rule 63 (1) of the Probate and Administration Rules. The said rule provides;“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.” 30.Order 45 of the CPR provides as follows;Order 45, rule 1: Application for Review of decree or order.(1)any person considering himself aggrieved;a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the Court which passed the decree or made the order without unreasonable delay. 31.The three limbs discernible from part (b) above are;a.Discovery of new and important matter or evidence.b.Mistake or error apparent on the face of the record.c.Any other sufficient reason. 32.From the history captured above, it is evident that the said application had been filed by the firm of V.O.N Makau on behalf of the Objectors but upon change of representation, the new counsel for the Objectors Ms. Onyango indicated that she wanted to amend the said application and appropriate orders were given. From the record, the said application was not amended nor withdrawn. Having looked at the two applications, it is clear that they are almost identical and the only difference could be that they are filed by two different firms of Advocates. Consequently, the application dated 25/09/2025 is still pending hence no error as alleged. 33.The Petitioners were given 5 days to respond to the new application dated 3-12-2025 but when the matter came up for mention for directions on 15/12/2025, which date had been taken by consent, there was no appearance for the Petitioners. It was indicated by the objector’s counsel that no response had been filed. This court took the liberty to confirm that there was no response on the e-filing platform and as such, the application was allowed as unopposed. One of the arguments by the Applicants is that the substantive orders were given on a day that had not been scheduled for hearing of the application. 34.From the record, it would appear that the court was misinformed by the Objector’s counsel that the application was for hearing on 15-12-2025 when actually it was for mention for directions. There was therefore an apparent error on the face of the record by the court making substantive orders on a day for mention. 35.After careful scrutiny of the CTS, it is also clear that the there was a replying affidavit file filed in response to the application hence the order that it was unopposed was an apparent mistake on the face of the record. See Mwihoko Housing Company Limited Vs Equity Building Society [2007] 2 KLR 171, where it was held, inter alia: -“A review could have been granted whenever the Court considered that it was necessary to correct an error or omission on its part. The error or omission must have been self-evident and should not have required an elaborate argument to be established. It would neither have been sufficient ground of review that another Court could have taken a different view of the matter nor could it have been a ground that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or another provision of law could not have been a ground for review. There was no discovery of a new and important matter or evidence which after due diligence was not within the knowledge of the appellant at the time the judgment and decree was passed. There was no error apparent on the face of the record or any other sufficient reason to justify review”. 36.In view of the above revelation, it is clear that had the court taken into account the fact that the application was for mention and that a response had been filed, it could not have made the decision it made. To that extent the application is merited and therefore allowed and the orders of 15-12-2025 reviewed. The orders of 15-12-2025 are consequently vacated and the status quo obtaining preceding to the making of the impugned orders restored. 37.The net effect is that the applications dated 25-9-2025 and 3-12-2025 are still pending. As to whether time lines were met in respect to filing responses to the application of 3-12-2026, that is the subject for determination when the two applications come up for hearing. The rest of the prayers will be canvassed during the hearing of the application dated 3-12-2026. Mention on 23-9-2026 for further directions. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JUNE 2026……………..........……J.N.ONYIEGOJUDGES