In re Estate of Mbalanya Omwakwe (Deceased) [2022] KEHC 11428 (KLR)

In re Estate of Mbalanya Omwakwe (Deceased) (Succession Cause 569 of 2014) [2022] KEHC 11428 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11428 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 569 of 2014

WM Musyoka, J

July 8, 2022

IN THE MATTER OF THE ESTATE OF MBALANYA OMWAKWE (DECEASED)

Ruling

1. On July 14, 2021 the Advocates for the parties informed me that the parties had gone through a mediation process, but had failed to agree on the individuals to be appointed as administrators. It was proposed that each house could appoint an administrator. After hearing the Advocates, I directed that four administrators be appointed from the five house, so that the first, second and fourth houses appointed one each, and the third and fifth houses appointed one. I reserved the matter for mention on November 4, 2021, for the Advocates to avail the names of eth four proposed administrators for formal appointment.

2. On November 4, 2021, the Advocates for the parties, placed the names of Rebecca Litunya Alushula, Benson Amukoa Mbalanya, Francis Amoche Mbalanya and Musa Amuwakwe Mbalanya before me for appointment as administrators. All three advocates who were present concurred on the list, and I proceeded to appoint Rebecca Litunya Alushula, Benson Amukoa Mbalanya, Francis Amoche Mbalanya and Musa Amuwakwe Mbalanya as administrators of the estate of the deceased, and to direct that a grant of letters of administration intestate be processed and issued to them. Such a grant was processed and issued, dated November 10, 2021.

3. Subsequent to that a summons was filed herein on November 15, 2021, dated November 8, 2021, seeking review of the or setting aside of the orders of October 4, 2021 appointing the administrators. The applicants propose appointment of Rosalia Okila Mbalanya, Benson Amukoa Mbalanya, John Ombima and Gilbert Etale Mbalanya instead of Rebecca Litunya Alushula, Benson Amukoa Mbalanya, Francis Amoche Mbalanya and Musa Amuwakwe Mbalanya. They aver that a family meeting was convened under the local Chief, where their names were picked as administrators. There are letters written by the Chief in September and October 2021 alluding to the activity of proposing administrators.

4. In the first place, no order was made on October 4, 2021 appointing administrators. Indeed, this court did not even handled this matter on October 4, 2021. There is, therefore, no order of October 4, 2021 available for review or setting aside. Secondly, the court did not direct the chief to do anything with regard to appointment of administrators. Thirdly, the letters placed before me were written in September/October 2021, yet the court sat on November 4, 2021, to receive names, and the documents being relied upon by the applicants were not placed before the court on that date, yet the Advocates who drew the application dated November 8, 2021 were represented in court. Thirdly, the application is for review, yet there is no averment or proof that there was an error apparent on the face of the record, or discovery of material that the applicants did not have possession of and could not place before the court on November 4, 2021.

5. The court made the appointments on November 4, 2021 on the basis of a consent by the Advocates by the parties. A consent order is akin to a contract. It can only be set aside on the same grounds as available for rescinding a contract, that is to say fraud and illegality. It is neither alleged nor established that the consent orders of November 4, 2021 were recorded vide a fraudulent or illegal process, to warrant their being set aside. SeeBrooke Bond Liebig Ltd vs Mallya [1975] EA 266 (Law Ag P, Mustafa Ag VP & Musoke JA), Wasike vs Wamboko [1988] KLR 429 (Hancox JA, Nyarangi & Platt Ag JJA), Samson Munikah practicing as Munikah & Company Advocates vs Wedube Sates Limited [2007] eKLR (Tunoi, O’Kubasu & Githinji JJA) andEast African Portland Cement Company Limited vs Superior Homes Limited [2017] eKLR (Waki, Nambuye & Kiage JJA).

6. The applicants should not engage the court in unnecessary back and forth. Administrators have been appointed by the court, based on names proposed by the Advocates appearing for the parties. The parties should work with the appointments made on November 4, 2021. They should avoid getting stuck at the same spot over turf wars that are not going to aid the administration of the estate and its eventual distribution amongst those beneficially entitled. Let the administrators appointed on November 4, 2021 go on, whether singly or corporately, and apply for confirmation of their grant.

7. I find no merit in the application dated November 8, 2021 and I hereby dismiss the same. Each party shall bear their own costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JULY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Nafuye, instructed by NK Wetsusa & Company, Advocates for the Rosalia Mbalanya.Mr. Getanda, instructed by EO Getanda & Company, Advocates for Tom and Benson Mbalanya.Ms. Wilunda, instructed by EA Wilunda & Company, Advocates for Alice Owano.2