https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8748

Muguheli (Suing as the Administrator to the Estate of the Deceased Eric Ndeda) v Yalwala & another (Civil Appeal E019 of 2024) [2026] KEHC 8748 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 8748 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E019 of 2024 RN Nyakundi, J June 24, 2026 Between Aggrey Lusuri Muguheli (Suing as the Administrator to the Estate of the Deceased Eric Ndeda) Appellant and Margaret Yalwala 1st Respondent Antony Yalwala 2nd Respondent Ruling 1.What is pending before this Honourable Court is a Notice of Motion Application dated 27th April 2026 premised under section 1A, 1B & 3A Civil Procedure Act, Order 51(2) Civil Procedure Rules and Articles 159 and 165(3) of the Constitution where the Applicants are seeking the following orders: -a.That the Appeal herein be struck out and file closed.b.That costs of the Appeal and this Application be provided for. 2.The Application is made on the following grounds on the face of it among others: -a.That the Appeal herein emanates from a joint ruling by the Hon. R. Ndombi, PM delivered on 11/04/2024 in Vihiga Civil Suit NO. E112 OF 2021 in Applications dated 21st November, 2022 and 1st February, 2024 respectively.b.That orders sought in the appeal herein have been overtaken by events following the trial court’s judgement in Vihiga SPMCC NO. E32 OF 2024 which outlined distribution of the decretal sum forming part of the deceased’s estate thus settling the dispute that gave rise to Notice of Motion applications dated 21/11/2022 and 01/02/2024 respectively.c.That the appeal is an exercise in futility and its outcome will merely be academic since the conditions precedent and founding the appeal have been settled vide trial court’s judgement of 27th January, 2026 in Vihiga SPMCC No. E032 of 2024 thus the need to strike it out.d.That the instant application has been brought in good faith and without unreasonable delay.e.That it is procedurally fair and justifiable that the instant appeal is struck out with orders as to costs.f.That it is in the interest of justice and fairness that the orders sought be granted. 3.The Application is supported by the annexed Affidavit sworn Geoffrey Otieno Okoth, Advocate representing the Applicants who deponed as follows: -a.That the Appeal herein emanates from a simultaneous ruling by the Hon. R. Ndombi delivered on 11/04/2024 in Vihiga Civil Suit NO. E112 OF 2021 in Applications dated 21st November, 2022 and 1st February, 2024 respectively.b.That in the Application dated 21/11/2022, the Appellant sought orders that the proceeds of the Estate of Erick Ndeda due for payment, be paid to the firm of V.A SHIBANDA and Company Advocates on behalf of the Appellant herein.c.That the Respondents/Applicants vide Notice of Motion Application dated 1st February, 2024, came under Section 71 (1) of The Law of Succession Act and sought orders, inter alia, that; The trial court be pleased to order the Third Party and the Firm of V.A Shibanda & Co. Advocates to deposit the entire decretal sum of Kshs.2,327,396/= plus party and party costs assessed at Kshs.193,500/= plus accrued interest all amounting to Kshs.3,000,000/= in a joint interest bearing account in the names of the firm of Geoffrey O. Okoth & Co. Advocates and Akwala & Co. Advocates within 30 days pending the outcome of the Vihiga SPMCC Succession No. 32 of 2024 a petition for full grant.d.That the two applications were heard and determined concurrently wherein the court observed at paragraph 8 that “there was need to preserve the decretal sum as it awaits the determination of the rightful heir of the estate of the deceased. To avoid the back and forth of the decretal sum into different accounts, for either the advocates for the Applicants, Advocates for the defendants or even advocates for the third party or jointly, the court finds that the decretal sum which has already been paid to by the defendants should be deposited in a neutral account”.e.The upshot of the court was that Application dated 21st February 2022 is hereby dismissed whereas application dated 1st February, 2024 is allowed. For avoidance of doubt, the Firm of V.A Shibanda & Co. Advocates is directed to deposit into court the entire decretal sum of Kshs. 2,327,396/= plus the party and party costs assessed at Kshs.192,500/= plus accrued interest within 30 days hereof.f.That on 27th January, 2026, the trial court delivered a judgement in Vihiga SPMCC Succession No. 32 of 2024 wherein the court held inter alia that;a.Party and party costs of Kshs. 288,750.75/= be paid to the firm of Geoffrey O. Okoth & Company Advocates;b.Special damages awarded in Vihiga SPMCC NO. E112 OF 2021 of Kshs. 76,845/- awarded to the plaintiffs be remitted to their advocates;c.The balance of Kshs.2,634,404.39 to be shared equally between the petitioner and the objector at Kshs. 1,317,202.195/= being the biological parents of the deceased and the monies be remitted through their advocates on record.g.That the appeal herein has been overtaken by events following the trial court’s judgement in VIHIGA SPMCC SUCC. NO. E032 OF 2024 which spelt out how the decretal sum forming part of the deceased’s estate is to be distributed.h.That the Appellant acknowledges that both the instant appeal and ruling dated 11th April, 2024 from which this appeal emanates has been overtaken by events after the judgement in Vihiga SPMCC Succession CAUSE E032 OF 2024.i.That the instant appeal is an exercise in futility and its outcome will be merely academic thus the objector to strike it out.j.That the instant application has been brought in good faith and without unreasonable delay. Replying Affidavit 4.I take note that at the time of writing this Ruling, a look at the CTS and court record indicates that the application has not been opposed. Analysis and Determination 5.I have read and considered the Notice of Motion Application and the supporting affidavit thereto. There is only one issue manifest for determination by this Honourable Court: - hether the Appeal should be struck out? 6.The record reveals that the Appeal arises from the ruling delivered on 11th April 2024 in Vihiga Civil Suit No. E112 of 2021. In that ruling, the learned trial magistrate dismissed the Appellant’s application seeking release of the decretal sum to the firm of V.A. Shibanda & Company Advocates and allowed the Respondents’ application seeking preservation of the decretal sum pending determination of Vihiga SPMCC Succession Cause No. E032 of 2024. The court reasoned that there was need to preserve the decretal sum until the rightful beneficiaries of the estate of the deceased were identified through the succession proceedings. 7.It is therefore evident that the impugned ruling was interlocutory in nature. The trial court did not determine the substantive rights of the parties regarding entitlement to the estate. Rather, it merely preserved the decretal sum pending the determination of the succession proceedings. The preservation order was thus intended to operate only until the succession court determined the rightful heirs and directed the distribution of the estate. 8.The Applicants have placed before this Court the judgment delivered on 27th January 2026 in Vihiga SPMCC Succession Cause No. E032 of 2024. In that judgment, the succession court determined the issue of entitlement to the estate and directed how the decretal sum was to be distributed. The court ordered payment of party and party costs to the firm of Geoffrey O. Okoth & Company Advocates, directed payment of the special damages awarded in Vihiga SPMCC No. E112 of 2021, and ordered that the balance of the decretal sum be shared equally between the biological parents of the deceased. 9.The effect of that judgment is that the very purpose for which the decretal sum had been preserved has now been fulfilled. The succession court, being the court seized with jurisdiction to determine the beneficiaries of the deceased’s estate under the Law of Succession Act, conclusively determined the rights of the parties in relation to the decretal sum. Consequently, the factual and legal substratum upon which the Appeal was founded has ceased to exist. 10.Courts are established to determine real controversies between parties and not hypothetical or academic disputes. The doctrine of mootness dictates that where subsequent events deprive a dispute of practical significance, a court should decline to continue adjudicating the matter. The Black’s Law Dictionary, 9th edition defines a “moot case” as “a matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights”, and as a verb, as meaning “to render a question as of no practical significance”. Mootness of a matter therefore arises where a live controversy no longer exists between parties to a suit and the decision of the court, in such instance, would have no practical effect. The doctrine of mootness enquires whether events subsequent to the filing of a suit would have eliminated the controversy between the parties. 11.In National Assembly of Kenya Vs Okiya Omtata Okoiti & Another,CA. No. 53 of 2019, the Court of Appeal expressed itself as follows on the doctrine of mootness: -“By its nature, judicial adjudication concerns itself with resolution of live and concrete disputes, not theoretical propositions or pursuits, however lofty or academically stimulating. The doctrine of mootness, which courts in this jurisdiction have had occasion to apply, stands for the proposition that courts will not decide cases in which there is no longer any actual controversy.” 12.A matter is moot “where issues are of such a nature that the decisions sought will have no practical effect or result”. The factors that bear consideration when determining whether it is in the interests of justice to hear a moot matter include –a.Whether any order which it may make will have some practical effect either on the parties or on others;b.The nature and extent of the practical effect that any possible order might have;c.The importance of the issue;d.The complexity of the issue;e.The fullness or otherwise of the arguments advanced; andf.Resolving disputes between different courts”.’ (Footnotes omitted.) 13.In the case of Tilsa Projects (Pty) Ltd Vs Department of Public Works and Infrastructure and Others (9756/21P) [2025] ZAKZPHC 85, the High Court in South Africa distinguished between a case having become moot because it no longer presented a live issue for determination on appeal, on the one hand, and that of a claim having been extinguished before the judgment at first instance, on the other. The expression “mootness” in the jurisprudence of the appellate courts, so the Court found, was not used in the latter case. It said: -“Mootness is the term used to describe the situation where events overtake matters after judgment has been delivered, so that further consideration of the case by way of appeal will not produce a judgment having any particular effect. Here we are dealing with a logically anterior question, namely, whether there was any cause of action at all before the high court at the time it made its order. Was there anything on which it was entitled to pronounce? The principles governing mootness have little or no purchase in that situation.” 14.In the present Appeal, the dispute before the subordinate court revolved around the preservation and custody of the decretal sum pending determination of the succession proceedings. That issue has since been conclusively resolved by the judgment in Vihiga SPMCC Succession Cause No. E032 of 2024. Even if this Court were to proceed to hear the Appeal and ultimately reverse the ruling of 11th April 2024, such a determination would not alter the judgment of the succession court nor affect the distribution already ordered. The Court would therefore be engaging in an exercise that would produce no practical or enforceable outcome. 15.Moreover, permitting the Appeal to proceed notwithstanding the subsequent determination of the succession cause would be contrary to the overriding objective under Sections 1A and 1B of the Civil Procedure Act. It would result in unnecessary expenditure of judicial time and resources on a matter whose substratum has disappeared. Such a course would also offend Article 159(2)(b) of the Constitution which obligates courts to ensure the efficient and timely administration of justice. 16.This Court is therefore satisfied that the judgment delivered in Vihiga SPMCC Succession Cause No. E032 of 2024 has overtaken the issues raised in the present Appeal. The controversy that existed when the Appeal was lodged no longer subsists. The Appeal has become moot, academic and devoid of any practical utility. To sustain it would amount to an abuse of the court process and an exercise in futility. 17.Accordingly, guided by Article 159(2) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and the doctrine of mootness as recognized by the superior courts, I find that the Appeal has been overtaken by events and no longer discloses a live dispute capable of adjudication. 18.In view of the above the following orders do abide: -a.That the Application dated 27th April 2026 is meritedb.That the Appeal be and is hereby be struck out.c.The Applicant shall have the costs of this Application.d.The file be and is hereby marked closed. 19.Orders accordingly. DATED, SIGNED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 24TH DAY OF JUNE 2026..............................R. NYAKUNDIJUDGERepresentation:M/s Geoffrey O. Okoth & Co AdvocatesM/s V.A Shibanda & Co Advocates