https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11035

In re Estate of Owade (Deceased) (Succession Cause E220 of 1994) [2026] KEHC 11035 (KLR) (21 July 2026) (Ruling) Neutral citation: [2026] KEHC 11035 (KLR) Republic of Kenya In the High Court at Kakamega Succession Cause E220 of 1994 S Mbungi, J July 21, 2026 IN THE MATTER OF THE ESTATE OF J.A.OWADE (DECEASED) Between Domnic Mukhwana Oduoli Applicant and Francis Makokha Birenge Respondent Ruling 1.The Applicant herein approached this court in this succession matter through a notice of motion application dated 28th October, 2024 brought under Rules 49,63 73 and 74 of the Probate and Administration Rules, Section 80, 63 (e) and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil procedure Rules, Vacation Rules Section 10 and Rule 3 of the Judicature Act, Cap 8 and sought the following orders; -i.That the application be certified as urgent and be dispensed with in the first instance. (Spent)ii.That in the interim the Honourable Court be pleased to stay the proceeding in KAKAMEGA MCLE E079 OF 2024 pending the hearing and determination of this application. (Spent)iii.That in the Honourable Court be pleased to review the order of this Honourable Court of 28th May,1998.iv.That the Court be pleased to adopt the division of property as confirmed by the Honourable Court during the Confirmation of Grant dated 13th October.1994 and/or as the court deems fit.v.That the grant of letters of administration intestate issued to Ernest Kabaka Odol (Deceased) be declare useless and inoperative and a fresh grant to be issued to the Applicant.vi.That the firm of Makonjio, Nyaberi be granted leave to come on record in place of MS. Momanyi, Manyoni & Company Advocates post judgement/ confirmation.vii.That such further and other relief be granted to the applicants as this court deems fit and expedient in the circumstances.viii.That the costs of this application be provided for. 2.The application is supported by a supporting affidavit sworn by Applicant on 28th October, 2024. Applicant’s Case 3.The applicant deposes that he is one among four beneficiaries of the estate of J. A. Owade who died intestate on 10th July, 1989. 4.For context, the Applicant herein is a sibling of three other beneficiaries namely Ernest Kabaka Odol, Peter Maluvi Odol and Thomas Ochilo Odol who are all sons the late J. A. Owade. 5.That, the four beneficiaries petition this court for a grant of letters of administration intestate of the estate of J. A. Owade (Deceased) which was confirmed on 13th October, 1994. 6.The Appellant asserts that he is the only surviving beneficiary of the four, that the other three beneficiaries have since passed and he has taken out grant ad litem in respect of the three sibling who are now Deceased. 7.The Appellant further avers that “they” discovered that there were subsequent court proceedings that issued after confirmation of the grant without their knowledge and consent. 8.The Applicant further contends that upon institution of ELC suit No. E079 OF 2024 in the Lower Court, he discovered that the Respondent got a title to the “said land” by misrepresentation of facts to this Honourable Court. Respondents’ Case 9.The Respondent opposed the application vide a replying affidavit sworn by the Respondent on 21st January, 2025. 10.The Respondent avers that the Applications has been brought late given that the order(s) which the Applicant is seeking to be reviewed were issued on 28th May,1998 which was 26 years ago. 11.The Respondent contends that the application is not merited considering that the orders were reached through a consent of the parties who were also ably represented by their respective Counsel and that no valid ground has been demonstrated to disturb the consent order . 12.The Respondent avers that the alleged mutation has no any glaring mistake as to the correct acreage for all beneficiaries. 13.The Respondent avers further that the proceedings before the ELC Lower Court arose from a different cause of action. 14.In a nutshell, the Respondent maintains that his interest in the parent title was legally obtained and duly registered. That, he has since legally transferred his title to the another who has developed the property by putting up residential Houses. 15.The Court has carefully considered the submissions of both parties herein. Issues for Determination 16.Having looked at the Application , supporting affidavit, replying affidavit by Respondent and submissions of the parties. I isolate issues for determination as:-i.Whether the Application is brought with inordinate/Undue Delay.ii.Whether the Court Order issued herein by this Honourable Court on 28th May,1998 should be reviewed. 17.Notably, the prayers to stay proceedings in Kakamega ELC E079 of 2024 pending determination of this application is spent. Analysis And Determination i. Whether the Application is brought with inordinate/Undue delay. 18.The dispute by Applicant herein centre on the orders of this Honourable Court that were issued by B.K.Tanui,J. (as he then was) on 28th May,1998 where the Court allowed an application by one Ernest Kabaka Odol the then administrator of the estate herein seeking to amend the certificate of confirmation of grant issued on 13th October, 1994 to included the Respondent in the present application as a beneficiary of the estate. 19.This Court agrees with the Respondent that it has been ages since this order were issued even going by the simple arithmetic computation of the years that have since passed. However, the Court is also guided by the Court of Appeal observation in Makokha & another v Mbai & 9 others [2026] KECA 1223 (KLR) that undue delay is not just a matter of arithmetic computations but that the explanation offered for delay, the circumstances of the case should also to be considered. As to what amounts to inordinate delay G.V. Odunga-JA, ably observed that;-“…it is clear that the litmus test for inordinate delay is that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. In other words, in determining whether or not the delay is inordinate, it is not a matter of arithmetic. All the surrounding circumstances, including the reason for the delay must be considered by the Court.” 20.This application is dated 28th October, 2024 and challenges orders of this court issued on 28th May,1998. The Applicant has not stated where he was for that long, when he came to learn of the impugned orders and/or why it took him so long to move the Court. In his sworn affidavit, he simply states that he “recently discovered that there were subsequent proceedings which we ‘’were never aware”. It is not clear who else the Applicant is referring to that was not aware of the proceedings. As far as this court is can discern, there is only one Applicant in the present application who is also the deponent. 21.I found the explanation offered by the Applicant for the delay is not satisfactory. Therefore, this application is brought with inordinate/or undue delay. ii. Whether the Court Order issued herein by this Honourable Court on 28th May,1998 should be reviewed. 22.Whereas the Appellant contends that he was oblivious of the court proceeding on an application dated 28th November,1997 that culminated to the orders of the court issued on 28th May,1998 for amendment of the grant to include the Respondent herein as beneficiary, the Respondent argued that from the proceedings, all the beneficiaries of the estate were onboard and the orders were issued upon the parties reaching into a consent. 23.The Court notes from the proceedings that indeed the parties were represented in court by their respective Learned Counsel particularly 28th May,1998 when the consent order was recorded in court. The advocates representing the administrator of the estate confirmed the terms of the consent and the consent was adopted by the Court as a court order. 24.It then begs the question whether the Applicant has demonstrated that the Consent Order was reached by misrepresentation of facts as contended by the applicant to warrant the setting aside of the same. The misrepresentation alluded by the Applicant herein is that the Respondent initially claimed to be the purchaser of the plot which interest was subsequently registered in the parent title but in the later suit Kakamega ELC E079 of 2024 the Respondent stated that his father was the purchaser. However, no specific reference is made to any pleadings filed by the Respondent in Kakamega ELC E079 of 2024 where the Respondent stated that his father is the purchaser. What is annexed to the affidavit of Applicant are pleadings filed by the Applicant in Kakamega ELC E079 of 2024. 25.The Applicant has not placed any material before this court to demonstrate that Respondent was not purchaser and thus had no beneficial interest on the suit property. It appears from the averments in support of the application dated 28th November, 1997 that there was at some point a dispute on the purchase of the plot but same was resolved amicably and consequently the parties approached the Court to record a consent to include the Respondent as beneficiary to the Estate of the Deceased herein. 26.The Applicant is not saying the Advocates on record in the proceedings where the consent order was adopted as court orders acted without instructions of the parties or acted fraudulently. 27.This Court is persuaded by the Respondent’s argument that the court order entered by the consent of the parties should not be disturbed unless it is shown that the consent was entered into fraudulently, by mistake and/or misrepresentation. The Court of Appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) held;-“We do not think there is any merit in the complaints by the appellants that the learned judge erred by joining Athman to the suit and by entertaining his application, which was filed out of time. Athman was joined into the suit on 18th December 2012 by the consent of the parties, including the appellants. The appellants took no action or steps to challenge the consent order joining Athman to the suit, if indeed they were aggrieved by it. They waited to raise the issue of joinder in their submissions in the applications to set aside the orders of Mbito, J. It is trite law that a consent judgment or order can only be set aside on the same grounds as would justify the setting aside a contract, for example on grounds of fraud, mistake or misrepresentation.” (Emphasis supplied) 28.As already noted, this application is brought before this court under inordinate delay which is not explained. Notably, a lot has since happened since the impugned orders issued, the orders were implemented promptly by the administrator of the estate as obligated under the law, titles issued and there is even indication that the title issued to the Respondent herein has been transferred to a third party who has put up permanent structure on the suit property. Above all, the other three beneficiaries who are brother of the Applicant herein are now Deceased and cannot come to Court to speak for themselves. It cannot be that it is at this point that the Applicant has discovered that there was a problem with courts proceedings two decades ago affecting all the four beneficiaries. 29.In the upshot, the Court finds that the Appellant has not demonstrated any grounds to warrant the setting aside or review of the orders of the Court issued on 28th May,1998 and/or consequential orders. Therefore, the court orders remain binding. 30.Accordingly, the Court makes the following orders:a.The application dated 28th October, 2024 is not merited and it is dismissed with costs.b.The Applicant shall bear the costs of this Application.c.It is so ordered. 31.Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 21ST DAY OF JULY, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Velma/Zilda.Mr. Mbetera for the Applicant present online.Ms. Bwotito holding brief for Getanda for Respondent present online.