https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9355

In re Estate of Oluchimba (Deceased) (Succession Cause 133 of 2008) [2026] KEHC 9355 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9355 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause 133 of 2008 S Mbungi, J June 25, 2026 IN THE MATTER OF THE ESTATE OF PETRO OLUCHIMBA (DECEASED) Between Vijania Ongoma Pamba 1st Applicant Sarah Abonyo Omwolo 2nd Applicant Anjelina Majembe 3rd Applicant and Adriano Ongoma Oluchimba Respondent Ruling 1.The application before the Court is the Chamber Summons dated 7th November 2024 brought under Rule 73 of the Probate and Administration Rules and Section 74 of the Law of Succession Act. The applicants seek orders that the orders made on 4th July 2024 closing this succession cause be set aside and/or vacated, that the cause be reopened to enable them challenge the redistribution of the estate of the deceased, and that costs be in the cause. 2.The application is supported by the affidavit of the 1st applicant, Vijania Ongoma Pamba. She depones that she and the other applicants are daughters of the deceased, Petro Oluchimba, and of the late petitioner, Catherine Abiyabo. 3.She avers that the respondent filed summons for revocation of grant without serving them and that they only became aware of the proceedings after instructing counsel to make inquiries regarding the succession cause. According to the applicants, the redistribution of the estate was undertaken without their participation and in violation of their right to be heard. 4.The application is opposed through the replying affidavit of the respondent sworn on 26th November 2025. The respondent contends that the applicants were duly served with all relevant pleadings and hearing notices. He annexed several affidavits of service and maintains that the applicants deliberately chose not to participate in the proceedings. He therefore urges the Court to dismiss the application. 5.I have considered the application, the affidavits on record, the annexures thereto and the written submissions filed by counsel. Issues for Determination 6.The issues arising for determination are:a.Whether this Court has jurisdiction to reopen and set aside the orders made on 4th July 2024;b.Whether the applicants were accorded an opportunity to participate in the proceedings leading to the redistribution of the estate;c.Whether sufficient cause has been established to warrant reopening of the succession cause;d.What orders ought to issue. Analysis and determination Whether this Court has jurisdiction to reopen and set aside the orders made on 4th July 2024; 7.Rule 73 of the Probate and Administration Rules preserves the inherent powers of the Court and provides:“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 8.In Re Estate of G.K.K. (Deceased) the Court held that succession proceedings are special proceedings and the Court retains inherent powers to make orders necessary for the attainment of substantive justice. 9.Likewise, in Re Estate of M’Mboroki M’Rinkanya (Deceased) the Court observed that Rule 73 empowers the succession court to revisit orders where the circumstances of the case demand intervention in order to avert injustice. 10.The High Court sitting as a succession court possesses inherent jurisdiction to revisit its orders where circumstances demonstrate that failure to do so would occasion injustice. 11.Consequently, I am satisfied that this Court has jurisdiction to entertain the present application. Whether the applicants were accorded an opportunity to participate in the proceedings leading to the redistribution of the estate 12.The applicants contend that they were not served with the summons for revocation of grant and that the proceedings culminating in redistribution of the estate were conducted without their participation. 13.The respondent has exhibited affidavits of service. The existence of affidavits of service ordinarily raises a presumption that service was properly effected. However, the Court is not bound to accept affidavits of service at face value where circumstances suggest that affected beneficiaries may not have had actual notice of proceedings affecting their proprietary rights. 14.The record reveals that the original administratrix was the applicants’ mother, Catherine Abiyabo. It is not disputed that she died before the proceedings culminating in the orders of redistribution were finalized. 15.The applicants’ complaint is that after the death of the administratrix they were never directly brought on board nor afforded an opportunity to participate as beneficiaries. 16.The right to be heard is a fundamental principle of natural justice. Article 50(1) of the Constitution guarantees every person the right to have disputes determined in a fair and public hearing. 17.In Onyango Oloo v Attorney General the Court of Appeal famously held that a decision reached in violation of the rules of natural justice cannot stand regardless of whether the outcome would have been the same. 18.Similarly, in Pashito Holdings Ltd & Another v Paul Nderitu Ndungu & 2 Others the Court emphasized that no person should be condemned unheard. 19.Succession proceedings directly affect proprietary rights of beneficiaries. Courts are therefore enjoined to ensure that all persons beneficially entitled are afforded a reasonable opportunity to participate before distribution orders are made. Whether sufficient cause has been established to warrant reopening of the succession cause 20.The applicants are undisputed daughters of the deceased. Their interest in the estate is therefore not speculative. The respondent argues that the matter should remain closed because service was effected and the applicants slept on their rights. 21.While finality of litigation is an important principle, it must be balanced against the constitutional imperative of substantive justice. 22.Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. 23.In Philip Chemwolo & Another v Augustine Kubende the Court held that mistakes and procedural lapses should not necessarily deprive a litigant of the opportunity to be heard where justice can still be done. 24.Further, in Shah v Mbogo the Court stated that the discretion to set aside orders exists to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake. 25.The applicants state that they became aware of the closure of the succession cause only after engaging advocates to follow up the matter. Whether that assertion is ultimately correct can only be tested through substantive proceedings once all parties are heard. 26.Of particular significance is the fact that the redistribution complained of appears to have occurred after the death of the original administratrix. The record placed before this Court does not demonstrate that substitution of the deceased administratrix was undertaken before the impugned proceedings were concluded. 27.In Re Estate of Gitau (Deceased) the Court observed that a grant becomes incapable of execution where the sole administrator dies and appropriate steps must be taken to regularize administration. 28.The circumstances presented by the applicants therefore raise arguable issues deserving judicial interrogation. 29.The Court is not at this stage determining whether the redistribution was lawful or unlawful. The Court is merely considering whether the applicants have demonstrated sufficient cause to justify reopening the proceedings. 30.I am persuaded that they have. 31.The respondent contends that reopening the matter will prejudice him. Reopening the cause does not automatically invalidate any distribution nor does it determine the rights of the parties. It merely restores the matter for hearing on the merits. 32.On the other hand, refusal to reopen the proceedings would permanently deny the applicants an opportunity to challenge a redistribution that allegedly affected their inheritance rights. 33.The balance of prejudice therefore tilts in favour of allowing the applicants to be heard. 34.Having considered the entire record, the applicable law and the authorities cited, I am satisfied that the interests of justice require that the applicants be afforded an opportunity to participate in proceedings concerning the distribution of the estate of their late father. 35.Accordingly, I find merit in the application dated 7th November 2024 and make the following orders:a.The orders issued on 4th July 2024 closing this succession cause are hereby set aside.b.This succession cause is hereby reopened.c.The applicants shall within thirty (30) days file and serve the appropriate pleadings challenging the redistribution of the estate.d.The respondent shall be at liberty to file responses within fourteen (14) days of service.e.Mention 21.10.2026.f.Costs shall be in the cause. 31.Orders accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 25H DAY OF JUNE, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Velma/Zilda.Applicants present.Ms. Cherono Holding brief Mr. Nandwa for the Applicants present online.Luchivia for the Respondent absent.Respondent absent. KK. HSUCC 133 OF 2008 - RULING 0