https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10765

Owuor & another v Okwama & 3 others (Family Miscellaneous Civil Case E001 of 2024) [2026] KEHC 10765 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10765 (KLR) Republic of Kenya In the High Court at Siaya Family Miscellaneous Civil Case E001 of 2024 DK Kemei, J July 17, 2026 IN THE MATTER OF THE ESTATE OF SIMEON OKWAMA OPALA (DECEASED) Between Grace Ojwang Owuor 1st Applicant Joel Nyagudi Okwama 2nd Applicant and Rebecca Waore Okwama 1st Respondent Sylvia Atieno Okwama 2nd Respondent and John Walter Onyango Otieno 1st Interested Party Ronald Okwama 2nd Interested Party Ruling 1.The 2nd Interested Party /Applicant has filed an application dated 16/2/26 seeking the following reliefs:i)That the order substituting Rebecca Waore With Okwama Otieno Juma as the administrator representing the 1st house of the estate of the deceased be revoked and/or set aside.ii)That the grant of letters of administration be rectified accordingly by substituting the said Okwama Otieno Juma With Ronald Okwama as the administrator representing the 1st house.iii)That the costs of this application be in the cause. 2.The application is grounded on the annexed affidavit of Ronald Okwama and the grounds set out thereunder. The 2nd Interested Party’s gravamen is inter alia; that he is the eldest son and second born of the late Isaack Otieno Okwama, who was the only son of Susan Okwama, the 1st wife of the deceased; that by the ruling delivered on 14th October 2025, this Honorable Court directed that each of the three houses of the deceased be represented by one administrator; that the substitution of Rebecca Waore With Okwama Otieno Juma as the administrator for the 1st house was occasioned solely by the failure of the Objector’s former counsel to file the requisite documents within the prescribed time; that the said failure was inadvertent and was not deliberate or attributable to the objector; that the objector was thereby condemned unheard and unlawfully deprived of his right to administration; that under Section 66 of the Law of Succession Act, the Objector has a prior and superior right to administration over the said Okwama Otieno Juma; that the said Okwama Otieno Juma is from the second house of the late Isaack Otieno Okwama and does not supersede the Objector in seniority; that the proceedings leading to the said substitution were defective in substance; that it is in the interest of justice that the said substitution be set aside and the proper line of representation of the 1st house be restored; that this Honourable Court has the inherent jurisdiction to set aside the said order and rectify the grant accordingly. 3.The application is opposed by the 1st and 2nd Respondents vide a replying affidavit wherein it was contended that the Court substituted the 1st house's representative regularly without any timeous objection. That the Respondents argue that Okwama Otieno Juma was chosen and trusted by Rebecca Waore, and that the family minutes reflect an opposition to the Applicant's appointment based on his educational and academic status and thus the choice of Okwama Otieno Juma was appropriate as he was acceptable across the board by family members. 4.The dispute was between the 2nd Interested Party and the two Respondents herein as the other parties opted out of the application as it did not affect them. 5.The application was canvassed by way of oral submissions. 6.M/s Theuri for the 2nd interested party submitted inter alia; that the substitution of Rebecca Waore with John Otieno Juma Okwama to represent the 1st house is not acceptable as the 2nd Interested Party herein is the eldest from his house while John Okwama hails from the 2nd house and not the 1st house and further that he is younger than Ronald Okwama (2nd Interested Party); that the opposition to Ronald Okwama on grounds of educational status is not proper as the Law of succession Act does not prescribe any academic qualification for one to be appointed as administrator; that the 2nd interested party has been personally attacked on grounds of his educational status; that the Luo customs dictate that the eldest son of a house should be the one to administer; that the 2nd interested party is the eldest son in the family and he should be a proper administrator; that the selection of Juma Okwama was done without involvement of family members which demeaned the 2nd interested party who is capable to administer the estate; that in the event the court includes him as well as Juma Okwama from the 2nd house then both can be included so that both houses are sufficiently represented; that it is not true that the 2nd Interested Party sat on his rights as he had appointed counsel who did not file the documents which led to the substitution of Rebecca Waore with Otieno Juma; that the 2nd Interested Party has moved the court as he is the eldest son from the 1st house and that he stands to be prejudiced if the application is not allowed; that the mistake of counsel should not be visited on him. 7.Ms. Amondi for the Respondents submitted inter alia; that it is not in dispute that both parties are sons of the deceased and that it is not in dispute that this court substituted Rebecca house with john Otieno as there was no objection; that the principles governing setting aside orders are guided by the case of Shah Vs. Mbogo which is to do justice but not to delay or obstruct the cause of justice; that the Supreme Court of India in Civil Appeal No. 1467 Palmal Vs. Vena Veek, the court held that sufficient cause must be established; that the administrator appointed by Rebecca house is from the 2nd house and that the 2nd interested party should not overlook him; that this is violation of equality rights in that Rebecca had been appointed and who has voluntarily accepted John as Juma Okwama, whom she trusted; that Article 2(4) of the constitution states that any law including customary law which is in conflict with the constitution will be void to the extent of its inconsistency; that the earlier orders should not be disturbed; that the 2nd interested party should not interfere with the earlier orders and that the application should be dismissed with costs. 8.I have considered the application and the rival oral submissions. I find the issue for determination is whether the application has merit. 9.It is common ground that the Court’s previous administrative substitution was fast-tracked because the Applicant’s previous legal representative failed to submit the appropriate documents on time. Ms. Amondi for the Respondents has vigorously argued, citing Indian jurisprudence (Patmal v. Vena Veek) that a party must show sufficient cause and cannot sit on their rights. 10.While this Court is alive to the requirement of diligence in judicial proceedings, it is a long-standing principle of equity in our jurisdiction that the mistakes, inadvertence or omissions of an Advocate should not be visited upon an innocent litigant. In the locus classicus case of Shah v. Mbogo [1967] EA 116 which ironically both parties sampled for distinct positions, the court held that the discretion to set aside ex-parte or default orders is intended to avoid injustice provided that the application is not an attempt to deliberately delay or obstruct the course of justice. Also in Philip Keipto Chemwolo Vs Augustine Kubende [ 1986] KECA 87 (KLR) the Court of Appeal held that an advocate’s blunders should not deny a litigant a fair hearing and it went ahead to point out that blunders will continue to be made from time to time by parties and counsels and that the courts should try and ensure that the parties cases are heard on merits. 11.In the present case, the Applicant has sufficiently demonstrated that he had fully instructed counsel to protect his interest in representing the 1st house pursuant to this Court's explicit guidance on 14th October 2025. The failure to file the forms was an oversight by counsel not a deliberate abdication of rights by the Applicant. To lock out a primary beneficiary from administering his father’s estate on a purely technical procedural default would violate the overriding objective of oxygenating justice under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya, 2010 which commands courts to administer justice without undue regard to procedural technicalities. 12.Turning to the merits of the representation itself, the estate is clearly polygamous. Under Section 40 of the Law of Succession Act, the property of a deceased polygamist is distributed according to houses. By extension and as this Court ordered on 14th October 2025, administrative equity requires that each house be accorded a voice at the table of representation to prevent the disenfranchisement of any branch of the family. 13.The Respondents do not dispute that the Applicant, Ronald Okwama is the eldest son of the first house. Instead, they seek to uphold the appointment of Okwama Otieno Juma who belongs to the second house to represent the first house. This creates a structural anomaly. A representative of the second house cannot adequately or harmoniously project the administrative wishes and distinct interests of the first house against the backdrop of family contestation. 14.Furthermore, the Respondents' argument that the Applicant is unsuitable to administer the estate based on his "educational status" or academic qualifications is entirely unsustainable. This Court must state with clinical clarity that Section 66 of the Law of Succession Act establishes the statutory criteria for the selection of administrators, focusing strictly on the degree of consanguinity and priority of right. It states:“ 66.When a person dies intestate, the court shall save as otherwise expressly provided have a total discretion as to the grant of letters of administration to any applicant but so that the court shall guide itself by the following order of preference (a) surviving spouse or spouses... (b) children of the deceased..." 15.Nowhere within the text of the Law of Succession Act is a minimum academic qualification, degree or educational certificate prescribed as a condition precedent for a grant of letters of administration. The only statutory disqualifications relate to unsoundness of mind, minority or bankruptcy. To disqualify an eldest son of a house from administering an estate based on an alleged lack of high educational standards would introduce an extra-statutory barrier that is discriminatory, elitist and offensive to Article 27 of the Constitution of Kenya which guarantees equality and freedom from discrimination. 16.If a party is of sound mind and possesses a beneficial interest, their right to consensus-based house representation cannot be vitiated by a perceived educational deficit. The Customary law of the parties also reinforces the leadership of the eldest son within his specific house, and under Article 2(4) of the Constitution such customs are valid to the extent that they do not conflict with constitutional guarantees of fairness. In this case, appointing a younger son from a different house to manage the first house over the head of that house's eldest son is an engine of perpetual family friction. 17.In the final analysis, this Court finds that the Applicant has established a compelling case for the intervention of this Court. To maintain the order of substitution dated prior would be to perpetuate an inequitable imbalance where the 1st house is effectively governed by an administrator from the 2nd house leaving the 1st house without its authentic chosen representation. Equity speaks to substance not form. 18.Consequently, to restore the procedural equilibrium and give full effect to the Court's order of 14th October 2025, the Notice of Motion dated 16th February 2026 is hereby found to have substantial merit and that the same is allowed as prayed in terms of prayers 1 and 2 thereof. As parties are members of one family, each party shall bear their own costs. DATED, SIGNED AND DELIVERED AT SIAYA THIS 17TH DAY OF JULY .2026D. KEMEIJUDGEIn the presence of:M/s Theuri………………………...………for 2Nd Interested Party/ ApplicantM/s Amonde For Victor Onyango……. For 1St And 2Nd RespondentsM/s Kinyanjui…………………..…………for 1St&2Nd AdministratorsMaureene….……........................................ Court Assistant