https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10474

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **SUCCESSION APPEAL NO. E10 OF 2021** **IN THE MATTER OF THE ESTATE OF OPWAKA OSORE CHISAKA (DECEASED)** **ALPHONCE OSORE……………………………………………….APPELLANT/APPLICANT** **VERSUS** **FLORA AUMA OPWAKA………………………………………..………………RESPONDENT** **RULING** 1. The Notice of Motion dated 8th October 2025 is brought by the Appellant/Applicant,Alphonce Osore under section 45 of the Law of Succession Act, Rules 49 and 75 of the Probate and Administration Rules and all other enabling provisions of the law. 2. The Applicant seeks orders that the titles to Land Parcel Nos. SOUTH WANGA/BUKAYA/653 and SOUTH WANGA/BUKAYA/660 be cancelled and reverted to the name of the deceased pending distribution of the estate.The application is supported by the affidavit of the Applicant sworn on 8th October 2025. 3. This appeal arises from succession proceedings relating to the estate of the late Opwaka Osore Chisaka (Deceased). The dispute concerns the distribution of the deceased’s estate, particularly Land Parcel Nos. SOUTH WANGA/BUKAYA/653 and SOUTH WANGA/BUKAYA/660, over which the Appellant, Alphonce Osore, and the Respondent, Flora Auma Opwaka, who are siblings and beneficiaries of the estate, have been in disagreement. 4. The record shows that the Respondent petitioned for letters of administration in respect of the estate. Dissatisfied with the proposed mode of distribution, the Appellant lodged an objection, contending that the succession proceedings had been undertaken without involving all the beneficiaries of the estate. The dispute culminated in this Court’s judgment delivered on 29th May 2025, wherein the Court determined the appeal and directed that the two parcels of land be distributed equally between the two houses of the deceased, with transmission to be completed within ninety (90) days. 5. Subsequent to the judgment, the Respondent initiated the process of implementing the Court’s decree by engaging a licensed surveyor to undertake the survey and subdivision of the suit properties. Before the exercise could be completed, the Appellant conducted official searches at the Kakamega Lands Registry and discovered that the two parcels had already been registered in the Respondent’s name. He contends that the registration was effected in 2018 without the knowledge or participation of the other beneficiaries and that the Respondent has since commenced disposing of portions of the estate to third parties. 6. It is on the basis of that discovery that the Appellant filed the Notice of Motion dated 8th October 2025, seeking cancellation of the titles, reversion of the properties to the name of the deceased, and an order halting the survey and subdivision exercise. The Respondent opposed the application and, in response, sought enlargement of time to complete transmission of the estate, contending that she was merely implementing the judgment of this Court and that the Appellant had unlawfully obstructed the execution process despite there being no order staying the judgment of 29th May 2025. 7. It is the Appellant’s application dated 8th October 2025 that now falls for determination. 8. The Respondent opposed the application and filed a cross-application seeking enlargement of time to complete transmission of the estate. She contends that she is merely implementing the judgment of this Court, that a licensed surveyor had been engaged, but the Applicant obstructed the survey exercise. She further depones that no stay of execution has ever been granted. **ISSUES FOR DETERMINATION** 1. Having considered the application, the response, the affidavits on record and the law, the issues for determination are: 2. Whether the Applicant has established a basis for cancellation of the titles. 3. Whether implementation of the judgment delivered on 29th May 2025 ought to be halted. 4. What orders should issue. **ANALYSIS AND DETERMINATION** * 1. **Whether the Applicant has established a basis for cancellation of the titles.** 1. There is no dispute that this Court rendered judgment on 29th May 2025 determining the mode of distribution of the estate. That judgment has neither been reviewed nor set aside. The Applicant does not dispute that there is presently no order staying execution of the judgment. 2. The Applicant nevertheless urges this Court to cancel the Respondent’s titles on grounds that they were secretly procured in 2018.The power to order rectification of the land register is donated by section 80 of the Land Registration Act. However, cancellation of title is a substantive remedy requiring proof of fraud, illegality or mistake. 3. The Court of Appeal in **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR** reiterated that allegations of fraud must be strictly proved by cogent evidence. 4. Similarly, in **Kinyanjui Kamau v George Kamau [2015] eKLR,** the Court held that fraud is a serious allegation which must be specifically pleaded and strictly proved. 5. In the present matter, the Applicant has exhibited official searches showing that the Respondent is the registered proprietor. Those searches merely establish the current status of registration. They do not demonstrate the legality or otherwise of the process through which registration was effected. 6. No transfer instruments, Land Registrar’s records, grant documents or other primary evidence have been produced demonstrating that the Respondent procured registration through fraud or in violation of the law. 7. The allegation that portions of the estate have already been sold to third parties equally remains unsupported by documentary evidence such as sale agreements or transfers. This Court cannot therefore make definitive findings of fraud on affidavit evidence alone. 8. Accordingly, the court finds that the Applicant has failed to place before the court sufficient evidence to warrant the cancellation of the Respondent’s titles at this interlocutory stage. 1. **Whether implementation of the judgment delivered on 29th May ought to be halted.** 9. The applicant further urges this court to halt the implementation of the judgment delivered on 29th May 2025 pending the determination of the issues raised in the present application.His principal contention is that the Respondent is proceeding with the survey, subdivision and transmission of the estate notwithstanding that the parcels are already registered in her name and that she has allegedly disposed of portions thereof to third parties. 10. The law is settled that filing an appeal or expressing an intention to appeal does not operate as a stay of execution.**In Butt v Rent Restriction Tribunal [1982] KLR 417**, the Court of Appeal held that a successful litigant ought not to be deprived of the fruits of his judgment except for sufficient cause shown. 11. Likewise, in **Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365**, the Court emphasized that execution may only be stayed upon satisfaction of the conditions prescribed by law. 12. The judgment of this court therefore remains valid and enforceable until set aside or stayed by a court of competent jurisdiction. This court cannot suspend the execution of its own decree merely because a party has expressed dissatisfaction with it. 13. The Applicant also invokes section 45 of the Law of Succession Act on intermeddling. Section 45 prohibits unauthorized dealings with the estate of a deceased person. 14. However, once a personal representative is acting pursuant to a confirmed grant and a valid court decree, implementation of the decree cannot without more be equated to intermeddling. 15. The Supreme Court in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR** reaffirmed that a court may only exercise jurisdiction donated by the Constitution or statute. This Court cannot grant substantive orders cancelling registered titles in the absence of sufficient evidential foundation, equally, the Court must exercise its discretion judicially. 16. In **Mbogo & Another v Shah [1968] EA 93**, it was held that judicial discretion must be exercised on sound legal principles and not capriciously. 17. The Court is further mindful that litigation must come to an end. The judgment determining distribution has already been rendered. Unless stayed or overturned, the successful party is entitled to enjoy the fruits of that judgment, as was observed in **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**, a court must act strictly within its jurisdiction. 18. This application cannot be converted into a substantive trial on allegations of fraud requiring viva voce evidence. 19. Consequently, I find no legal basis for halting the implementation of the judgment delivered on 29th May 2025, should the Applicant ultimately succeed in any appellate process, the law provides appropriate remedies. Until then, the decree of this court remains binding upon all parties. 20. The Court finds that the Applicant has failed to establish sufficient grounds to warrant cancellation of the titles or suspension of implementation of the judgment delivered on 29th May 2025. 21. Accordingly; 22. The judgment delivered on 29th May 2025 remains valid and enforceable. 23. The Respondent is at liberty to proceed with implementation of the judgment in accordance with the confirmed mode of distribution. 24. The Applicant, his servants and agents shall not obstruct implementation of the judgment unless a competent court grants an order of stay. 25. Given that this is a succession dispute involving members of the same family, each party shall bear his or her own costs. 26. Mention 3.12.2026 to confirm compliance. 27. Right of Appeal 30 days. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 10TH DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zildah/Velma Mr. Mundila holding brief for Obwatinya for Appellant present online. Respondent/Advocate absent.