Mugeni (alias Justine Mundoh) & 4 others v Mugeni & another

Nos. Bukhayo/Matayos/4065, 4066, 4067 and 4068 in the names of the 1st and 2nd respondents; and rectication of the register accordingly. 2. The application dated 17th June 2013 was anchored on the grounds that the grant had been obtained fraudulently through false statements and the concealment of material facts for reasons that the 1st respondent failed to disclose all the bona de beneciaries of the estate of the deceased Mugeni Makona Oboro, who died intestate, and instead colluded with third parties to intermeddle with and benet from the estate by entering into what they termed an unlawful sale agreement with the 2nd respondent, pursuant to which Land Parcel No. Bukhayo/Matayos/261 was subdivided and sold. Consequently, that the appellants, together with the other beneciaries of the estate of the deceased, were unlawfully disinherited. They maintained that, at the time of the deceased's death, there existed no debt or liability owing to the 2nd respondent, West Kenya Sugar Company Limited, that would have entitled it to assert any claim against the estate through the succession proceedings. Lastly, that the 1st respondent lacked the capacity and locus standi to sell, subdivide, dispose of, lease, alienate or transfer the estate property in the manner he purported to do, including by entering into a sale agreement dated 4th February 2012 with the 2nd respondent. 3. Subsequently, the appellants, who were appearing in person, led a Notice of Withdrawal/ Discontinuation dated 24th February 2015, withdrawing the application for revocation of grant dated 17th June 2013. On 31st August 2018, the appellants appointed Ms. R.V.Mukoya & Company, who proceeded to le the application dated 31st August 2018 seeking to have the notice of withdrawal expunged and that the application dated 17th June 2013 be heard. The main ground for that application was that the appellants were approached by agents of the 2nd respondent for an out-of-court settlement and were duped into discontinuing the matter without full disclosure, leading to the Notice of Withdrawal dated 24th February 2015. The appellants were as a result unjustly disinherited; never granted an opportunity to be heard; had since been advised on their legal position; and the respondents would not suer prejudice. 4. The 1st respondent in response deponed that he did not oppose the orders sought by the appellants and did not dispute the sale of 7.42 hectares out of Land Parcel No. Bukhayo/Matayos/261, which formed part of the estate of the deceased, to the 2nd respondent. Further, that the sale was undertaken on the understanding that the 2nd respondent was acquiring land in the area solely for the purpose of establishing a sugar factory that would benet the local community and improve their livelihoods. However, that more than six years later, the land remained undeveloped and he had been reliably informed the 2nd respondent was no longer interested in utilising the land for the intended purpose. Further, since some of the beneciaries appeared aggrieved by his earlier decision, the appropriate course would be for the estate to be redistributed among the surviving beneciaries, who would thereafter be at liberty to deal with their respective portions as they deemed t. According to the 1st respondent, the 2nd respondent would not suer prejudice if the orders sought were granted, as there existed adequate legal mechanisms through which it could pursue any available remedies. 5. The 2nd respondent opposed the application dated 31st August 2018 on the ground that it sought to revive a matter that had already been conclusively settled and in respect of which they had been compensated, and that the parties opted for an out-of-court settlement, pursuant to which the appellants voluntarily and unconditionally withdrew the objection and summons for revocation of grant after the appellants, together with another sister received Kshs. 160,000 through a banker's cheque on 18th July 2015 and a further Kshs. 8,000 in cash. The 2nd respondent asserted that allowing the application would occasion them substantial prejudice. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2050/eng@2026-07-03 2

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6. The trial Court (Kiarie W. Kiarie J.) in its ruling on 21st November 2019 found that the application was incompetent as it had not been brought under the provisions of the Law of Succession Act, and even if it had been brought under the provisions of the Law of Succession Act would not have succeeded for reasons that a party cannot be allowed to change positions at will without regard to the fact that the earlier position may have led the other to act. Further, the applicants were represented by an advocate and cannot claim they were duped, and did not need leave of the court to withdraw a matter in court. The appellants, being dissatised with the said ruling, led the instant appeal and raised ve grounds in their Memorandum of Appeal dated 25th November 2020. These grounds were that the evidence on record was not analysed, the appellants’ interests as beneciaries were disregarded, the grounds for the application were not appreciated, the Law of Succession in the disposal of a deceased’s property were not applied, and the ruling was illegal and unjust. 7. We heard the appeal on this Court’s virtual platform on 27th April 2026. Learned counsel, Mr. Mukoya was present for the appellants, while there was no appearance for the respondents despite their advocates on record having been duly served with the hearing notice, nor did they le any submissions on the appeal. Mr. Mukoya relied on his written submissions dated 17th February 2025, wherein it was argued that the bringing of the application in the trial Court under the Civil Procedure Rules was not fatal, as the application sought a review of the withdrawal of an earlier application. It was also within the trial Judge’s discretion to rectify the grant after conrmation, and to interrogate the averments by the appellants relating to the speed at which the respondents had driven the sale and transfer of the deceased's property, and the measly payment of Kshs 280,000/= made to two of the appellants, in a transaction in which the 1st respondent received a sum of Kshs 4,141,500/=. 8. Furthermore, that the appellants, who were daughters of the deceased, were entitled to an equal share of the estate under the provisions of section 38 of the Law of Succession Act, and the trial Judge erred in disregarding the appellants’ claim to their father's estate and ousted the court’s jurisdiction in determining the disposal of the deceased's estate against all existing and established provisions of the law after being presented with valid grounds for interrogating the fraud on the estate of the deceased and the beneciaries. Lastly, the trial Judge occasioned an injustice by his strict observance of section 63 of the Probate and Administration Rules. 9. In commencing the determination of this Appeal, we are mindful that the duty of this Court as a rst appeal Court, as reiterated and set out in the decision of Selle and another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123, as to reconsider the evidence, evaluate it, and draw our conclusion of facts and Law, and we will only depart from the nding by the trial Court if they were not based on evidence on record; if the said Court is shown to have acted on the wrong principles of law as was held in Jabane vs Olenja (1986) KLR 661, or where its discretion was exercised injudiciously as was held in Mbogo & another vs Shah (1968) EA 93. 10. The main issue before us is whether the appellants have established grounds that warrant our interference with the trial court’s exercise of discretion in dismissing their application. These grounds were set out in the case of United India Insurance Co. Ltd, Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd [1985] eKLR as follows: “ The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at rst instance, would or might have given dierent weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: rst, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2050/eng@2026-07-03 3

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fourthly, that he failed to take account of considerations of which he should have taken account, or fthly, that his decision, albeit a discretionary one, is plainly wrong.” 11. We have perused the record and considered the appellants’ arguments. It is not disputed that the application dated 31st August 2018 was brought by way of a Notice of Motion pursuant to the provisions of section 3A and Order 51 of the Civil Procedure Rules. Section 2 of the Law of Succession Act in this regard provides that the said Act shall constitute the law of Kenya in respect of all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of the Act and to the administration of estates of those persons. 12. Rule 63 the Probate and Administration Rules made thereunder in addition provides for the application of specied Orders of the Civil Procedure Rules, namely Order 5, Rules 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 and the High Court (Practice and Procedure) Rules in so far as they relevant to succession proceedings. Lastly, it is notable that Rule 49 of the said Rules provides that a person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall le a summons supported, if necessary, by adavit. It is therefore evident that the application dated 31st August 2018 was wanting in form and procedure. However, we nd that the omission by the appellants and failure to cite the provisions of Rules 49 and 63 the Probate and Administration Rules were not fatal to the application for two reasons. 13. Firstly, the application merely sought procedural and incidental orders which were aimed at expunging the notice of withdrawal dated 24th February 2015 from the record and the listing of the application dated 17th June 2013 for hearing. The orders sought therefore merely addressed the formalities and processes of the litigation that was before the trial court. No substantive orders relating to any rights or liabilities in the succession or administration of the deceased’s estate were sought in the application. Secondly, the application sought to be reinstated, being that of 17th June 2013 was the one seeking substantive orders of revocation of grant, and had been brought pursuant to section 76 and other applicable provisions of the Law of Succession Act. 14. 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, which save the inherent powers of the trial court to make such orders as may be necessary for the ends of substantive justice or to prevent abuse of the process of the court. It is thus our nding that the appellants’ application dated 31st August 2018 was not incompetent to this extent, and the trial Judge did not consider the abovecited constitutional and legal principles that would have sustained the application. 15. As regards the merits of the application, the availability of the prayers sought therein of expunging of the Notice of Withdrawal dated 24th February 2015 and reinstatement of the application dated 17th June 2013 for hearing was dependant on the legal eect of the said Notice of Withdrawal. The appellants’ notice of withdrawal dated 24th February 2015 did not state the law under which it was grounded, and it was explained by this Court in Beijing Industrial Designing & Research Institute vs. Lagoon Development Ltd (2015) eKLR that as a general rule, a plainti has an unfettered right to discontinue his action or claim. 16. The High Court additionally explained in Konaf Company Limited & another vs Nahashon Ngige Nyagah & 20 others [2017] eKLR, that the procedure of withdrawal of a suit is determined by the applicable rules, and that some rules specically require that leave of the Court be sought before there can be a withdrawal of a suit as follows: “ 23. One of the objects of the requirement for Leave in Constitutional or Election matters is that the issues in those Petitions may involve a Public https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2050/eng@2026-07-03 4

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Interest Element and the Court must determine the juridical implication of a withdrawal. In an Election Petition for example, a person who is qualied to be a Petitioner may be allowed to step into the shoes of a Petitioner who has applied to withdraw so that a Petition is not defeated merely because a Petitioner has been compromised into withdrawing it. 24. But in Civil matters, like the one before Court, the parties would invariably be agitating Personal Rights and so they would have full control in prosecuting their Claim including the unfettered Right to Discontinue a suit or withdraw a claim. That emboldens the General proposition that no Leave of Court is required nor a Court endorsement necessary to give eect to a withdrawal of Discontinuance under Order 25 Rule 1 of The Civil Procedure Rules.” 17. Similarly, the Supreme Court of Kenya, while considering an application for leave to withdraw a notice of appeal under Rule 19 of the Supreme Court Rules which allows a party, at any time before judgment, to withdraw any proceedings with leave of the Court, held in John Ochanda vs Telkom Kenya Ltd, SC App. No. 25 of 2014 and held that the right to withdraw or discontinue proceedings or withdraw a Notice of Appeal respectively ought to be allowed as a matter of right subject to any issue of costs, which can be claimed by the respondents, if any. The Court of Appeal Rules 2022 also allow parties to withdraw applications and appeals by consent or with leave of the Court under Rules 54 and 98 respectively. 18. This Court noted in Beijing Industrial Designing & Research Institute vs. Lagoon Development Ltd (supra) that a plainti’s right to discontinue his action arises because the ling of the action does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation. Further, that a court of law cannot force an unwilling plainti to continue with an action because, even if the court insists that he should continue, he may well refuse to tender evidence or take any further steps in the action. The Court considered the eect of a notice of withdrawal of suit led under Order 25 Rule 1 of the Civil Procedure Rules and held as follows:“The above provision presents three clear scenarios regarding discontinuance of suits or withdrawal of claims. The rst scenario arises where the suit has not been set down for hearing. In such an instance, the Plainti is at liberty, any time, to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the Plainti is to give notice in writing to that eect and serve it upon all the parties. In that scenario, the Plainti has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and lling a written consent of all the other parties. The last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on discontinuance of the suit or withdrawal of the claim or any part thereof. In such eventuality, the Plainti must obtain leave of Court to discontinue the suit or withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the Plainti’s right to discontinue his suit is circumscribed by the requirement that he must obtain the leave of the Court. That such leave is granted on terms suggests that it is not a mere formality”. 19. The Court however acknowledged that the circumstances of each case would determine the eects of a Notice of Withdrawal where a suit has not been set for hearing, and in particular pointed out that a Court will not allow a plainti to use the right to withdraw a suit so as to abuse the process of Court or to defeat the ends of justice., nor to defeat rights acquired by a defendant or protected by an order https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2050/eng@2026-07-03 5

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during the pendency of the suit, in which case such withdrawal would require endorsement of Court. While commenting on provisions similar to Order 25 Rule 1 of the Civil Procedure Rules, it is stated in Mulla’s Code of Civil Procedure, 18th Edition (2011) that withdrawal of the suit under sub- section (i) is complete as soon as it takes place, and in any case when the Court is informed of it. 20. In the present appeal, the Notice of Withdrawal le in the trial Court was in relation to a civil application (the application dated 17th June 2013) in a which the appellants sought to claim their inheritance rights, a situation that is analogous to a withdrawal of a claim under Order 25 Rule 1 of the Civil Procedure Rules. The record shows that on 10th October 2014 directions were given that the application dated 17th June 2013 would be heard on 13th May 2015. However, by that hearing date, the Notice of Withdrawal dated 24th February 2015 had already been led and the application was not heard. It is also notable that the 2nd respondent’s replying adavit dated 4th July 2013 opposing the application was on record. 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 eect, and the application dated 17th June 2013 therefore continued to exist. 21. Consequently, the appellants were at liberty to revoke the Notice of Withdrawal dated 24th February 2015 and to proceed with the hearing of the application dated 17th June 2013. The trial Judge therefore did err in nding that the appellants could not in the circumstances change their positions and that they did not need leave of the Court to withdraw their Notice. Lastly, it is also notable that at the time the appellants led the Notice of Withdrawal dated 24th February 2015, they also led a Notice to Act in person of the same date, and were therefore not legally represented, contrary to the nding by the learned trial Judge that they were represented by an advocate and could not claim that they were duped. 22. We accordingly nd 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 result that 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. In its place we order that the appellants’ Notice of Withdrawal dated 24th February 2015 led in Busia High Court Probate and Administration Cause No. 45 of 2012 be and is hereby expunged from the record, and the appellants’ application dated 17th April 2013 led therein be and is hereby remitted to the High Court at Busia for hearing and determination on priority basis by a dierent Judge other than Kiarie Waweru Kiarie J. There shall be no order as regards the costs of the application in the trial Court dated 31st August 2018, given the circumstances giving rise to the application; and similarly as regards the costs of this appeal, since the respondents did not participate in the appeal. 23. It is so ordered. DATED AND DELIVERED AT KAKAMEGA THIS 3RD DAY OF JULY 2026. P. NYAMWEYA. ………………………………. JUDGE OF APPEAL R. NGETICH ………………………………… JUDGE OF APPEAL RADIDO S.OKIYO ……………………………… https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2050/eng@2026-07-03 6

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JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2050/eng@2026-07-03 7

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