Mugeni (alias Justine Mundoh) & 4 others v Mugeni & another
The bottom line
#Kenya's Court of Appeal revived a family's land dispute, ruling they could undo a court-filed withdrawal of their case without needing permission first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants established grounds warranting interference with the trial court's exercise of discretion in dismissing their application dated 31st August 2018
- 2.Whether the application dated 31st August 2018 was incompetent for failure to cite the Law of Succession Act and the Probate and Administration Rules
- 3.The legal effect of the Notice of Withdrawal dated 24th February 2015 and whether leave of the court was required for it to take effect
Key legal issues
#Competence of an application in succession proceedings brought under the Civil Procedure Rules rather than the Law of Succession Act and Probate and Administration Rules
The failure to cite Rules 49 and 63 of the Probate and Administration Rules was not fatal because the application sought only procedural and incidental orders, and the omissions could be cured under Article 159 of the Constitution and Rule 79
The application dated 31st August 2018 merely sought expungement of a notice of withdrawal and listing of an earlier application for hearing; no substantive rights or liabilities in the estate were at stake. The substantive application of 17th June 2013 had been brought under section 76 of the Law of Succession Act. The trial judge failed to consider the curative constitutional and legal principles sustaining the application.
Legal effect of a notice of withdrawal of an application in succession proceedings
Where the application had been set down for hearing and a replying affidavit was on record, leave of the court was required for the notice of withdrawal to take effect; without such leave the application continued to exist and could be revived by revoking the notice
Directions had been given fixing the hearing of the application dated 17th June 2013 for 13th May 2015, and the 2nd respondent's replying affidavit was on record. Under the principles in Beijing Industrial Designing & Research Institute v Lagoon Development Ltd, withdrawal of a claim set down for hearing without consent requires leave of court. The trial judge erred in holding the appellants needed no leave and could not change position.
Whether the trial judge misdirected himself on the appellants' legal representation at the time of withdrawal
The trial judge erred in finding the appellants were represented by an advocate when they filed the notice of withdrawal, since they simultaneously filed a Notice to Act in person
At the time of filing the Notice of Withdrawal dated 24th February 2015, the appellants also filed a Notice to Act in person of the same date, meaning they were not legally represented. This contradicted the trial judge's finding that they were represented and could not claim to have been duped, constituting a misapprehension of facts justifying appellate interference.
Legal principles established
#- The Court of Appeal will only interfere with a discretionary decision on the established grounds of misdirection in law, misapprehension of facts, wrong considerations taken or omitted, or a plainly wrong decision
- Where a suit or claim has been set down for hearing and a party opposing is on record without consent to discontinuance, leave of the court is required for a notice of withdrawal to take effect
- Omissions in the form and procedure of an application in succession proceedings may be cured under Article 159 of the Constitution and the court's inherent powers to make orders for the ends of substantive justice
Court orders
#- 1.The ruling delivered on 21st November 2019 by the High Court at Busia (Kiarie W. Kiarie J.) is set aside in its entirety
- 2.The appellants' Notice of Withdrawal dated 24th February 2015 filed in Busia High Court Probate and Administration Cause No. 45 of 2012 is expunged from the record
- 3.The appellants' application dated 17th April 2013 is remitted to the High Court at Busia for hearing and determination on priority basis by a different Judge other than Kiarie Waweru Kiarie J
- 4.No order as to the costs of the application in the trial court dated 31st August 2018
- 5.No order as to the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Busia
- Busia High Court Probate and Administration Cause No. 45 of 2012
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction over High Court decisions (Constitution of Kenya, Article 164)
Relief refused
#Costs of the application dated 31st August 2018 in the trial court and costs of the appeal
Given the circumstances giving rise to the application and the respondents' non-participation in the appeal
Costs
No order as to costs - neither for the application in the trial court dated 31st August 2018 nor for the appeal; each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We accordingly find that there are valid grounds to interfere with the exercise of discretion by the learned trial Judge, and that this appeal is merited and is hereby allowed.
the ruling delivered on 21st November 2019 in by the High Court at Busia (Kiarie W. Kiarie J.) is hereby set aside in its entirety.
the appellants' application dated 17th April 2013 filed therein be and is hereby remitted to the High Court at Busia for hearing and determination on priority basis by a different Judge other than Kiarie Waweru Kiarie J.
It is our view that the omissions in form and procedure could have been cured by Article 159 of the Constitution and Rule 79 of the Probate and Administration Rules
The legal implications in the circumstances were that leave of the Court was required for the Notice of Withdrawal dated 24th February 2025 to take effect, and the application dated 17th June 2013 therefore continued to exist.
Issues in the judgment
#Date discrepancy in the remittal order: the application is dated 17th June 2013 throughout the judgment but the final orders refer to 17th April 2013
Date discrepancy: the Notice of Withdrawal is dated 24th February 2015 throughout but paragraph 20 refers to 24th February 2025
Conflicting figures for payments made to the appellants: Kshs 160,000 plus Kshs 8,000 versus Kshs 280,000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugeni (alias Justine Mundoh) & 4 others v Mugeni & another", Case Analysis (2026). Civil Appeal E019 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2050/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.