In re Estate of Mwania (Deceased) [2026] KEHC 16370 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION APPEAL NO. E033 OF 2025

RE: THE ESTATE OF JAMES MUTUA MWANIA(DECEASED)

ONESMUS MUSYOKI MUTUA ……...…………………………………..APPELLANT

VERSUS

FRANCIS MWANIA MUTUA…………………………………………...RESPONDENT

JUDGMENT

1. The Appellant filed summons on 8th October 2024 seeking orders for the inclusion of five other persons in the proceedings before the subordinate court as beneficiaries of the estate of the deceased and that, upon their being joined, the Respondent be directed to file an amended affidavit in support of the petition including them as beneficiaries.

2. The Appellant’s application was based on grounds that his deceased father was married to two wives, but only the 1st household was named in the petition and that the Respondent, as administrator, had left out the 2nd household as they were not aware of the proceedings.

3. The subordinate court dismissed the Appellant’s application with costs vide a ruling dated 25th February 2025 as it constituted an abuse of the court process and that it was meant to stall the implementation of the consent judgment.

4. The Appellant has appealed that decision together with the decision of the subordinate court issuing a warrant of arrest against him. The Appeal therefore presents two points for determination: whether the subordinate court erred in dismissing the Appellant's application for inclusion of the second household by amendment of the petition and whether the subordinate court erred in issuing a warrant of arrest against the Appellant.

5. I propose to deal with the appeal as it relates to the two points separately in this judgment.

6. The Appellant listed three grounds in his memorandum of appeal as the basis of his appeal against the decision of the subordinate court, that is: the court erred by failing to appreciate that failure by the Respondent to include the 2nd household in the petition as beneficiaries of the estate of the deceased was a shortcoming on the part of the Respondent, that the beneficiaries ought to have been included in the petition and that it was mandatory for the 2nd family to give their consent on the proposed distribution of the estate of the deceased.

7. I have considered the memorandum of appeal, the record of appeal in its entirety, and the submissions by both parties, and I have no hesitation in finding the appeal as regards inclusion of the second household without merit and a perpetuation of the Appellant’s abuse of the court process.

8. The record of appeal reflects that the Appellant and Respondent are brothers, sons of the late James Mutua Mwania. The deceased was married to two wives, with the Appellant and Respondent coming from the 1st household.

9. The Respondent petitioned for a Grant of Letters of Administration in respect of the estate of the deceased. The Grant was issued on 6th September 2016.

10. On 6th September 2017, the summons for confirmation of grant dated 22nd May 2017 came before the Senior Principal Magistrate. The application was not opposed, and the grant was confirmed. It is to be noted that the Appellant, who was present in court, consented to the confirmation of the grant.

11. The Appellant, together with the deceased’s 2nd wife, filed an application for revocation of the Grant on the basis that the succession proceedings had not included all the beneficiaries.

12. When the matter came up for hearing on the 6th November 2019, the record reflects that the wife of the deceased, who had filed the application on behalf of the 2nd house, indicated to the court that she wished to withdraw her application; she was no longer interested. She was permitted to withdraw, but the Appellant herein insisted on pursuing the application.

13. In a ruling delivered on 15th January 2020, the Appellant’s application for revocation of grant was dismissed; the court took into account the withdrawal of the co-applicant, who stated that she was misled into signing the application and the fact that the family of the deceased had agreed on the distribution of the estate of the deceased, and that minutes of the family meetings were presented before the court. It is to be noted that the Appellant attended the meetings and agreed to the distribution, consented to the application for grant and its confirmation.

14. The record reflects that the Appellant filed an application eleven months later seeking leave to appeal the said decision. That application was declined. The decision dismissing the application for revocation was therefore not appealed.

15. The record reflects that on 21st August 2023 a ruling was delivered settling the mode of distribution in the presence of the beneficiaries including the Appellant.

16. The Court directed the County Surveyor, Machakos County, to visit the parcels, map out the commercial plots measuring 50 feet by 100 feet along the Kangundo/Machakos Road and treat the remainder as farmland.

17. On 4th December 2023, the parties appeared before the subordinate court following the survey exercise. The Appellant raised a concern regarding the acreage allocated to him. The Court consequently directed the County Surveyor to consolidate the farmland acreage and subdivide it among Francis Mwania, Julius Wambua and Onesmus Musyoki.

18. Following the survey exercise, the issue of the second household was raised again by the Appellant who filed an application dated 8th October 2024 seeking, inter alia, the inclusion of the members of the deceased’s second household in the succession proceedings as beneficiaries and an order directing the Respondent to file an amended affidavit in support of the Petition reflecting the said beneficiaries.

19. On 29th October 2024, the parties appeared before the subordinate court in relation to the application concerning the second household. The Respondent opposed the application and maintained that the issue had previously been raised and determined. The Court directed that the members of the second household be summoned and that the parties file their respective responses.

20. The record reflects that on 31st January 2025, the second household appeared before the subordinate court pursuant to the summons issued by the Court. Mwelu Mutua, the deceased’s second wife, stated that the deceased was her husband but that she was not interested in the estate as she had received her share together with her children and was satisfied with the same. She further stated that the properties forming the subject of the succession cause belonged to her co-wife and her children.

21. In determining the application concerning the second household, the subordinate court considered the statement made by Mwelu Mutua on 31st January 2025. She informed the court that she and her children had received their share of the estate and were satisfied with the distribution. The court also noted that the question of the second household’s inclusion had previously been raised in the application for revocation of the grant, which had been dismissed and against which no appeal had been successfully pursued.

22. The subordinate court found that the application seeking the inclusion of the second household in the succession proceedings amounted to an abuse of the Court process and was intended to stall the implementation of the consent judgment and the survey undertaken in respect of the estate.

23. The Court consequently dismissed the application concerning the second household.

24. The present appeal sought to reopen the question of the inclusion of the deceased’s second household in the succession proceedings, notwithstanding that substantially the same issue had been raised in the earlier application for revocation of the grant which was dismissed on 15th January 2020. The Appellant’s attempt to revisit that issue through a subsequent application, without successfully challenging the earlier decision, amounts to an impermissible attempt to re-open a matter that had already been determined.

25. I have considered the Appellant’s submission on the issue, and they are a rehash of the same arguments that were dismissed in the earlier application for revocation before the subordinate court.

26. I find and hold that the application subject of these appellate proceedings and the appeal itself on the same is a clear case of abuse of the court process; the same is for dismissal with costs.

27. On the second limb of the Appeal, a dispute arose concerning the beacons placed on the ground following the court-ordered survey.

28. The Respondent filed an application dated 14th November 2024 alleging that the Appellant had ploughed portions of the subject land and, in the process, destroyed the beacons placed by the County Surveyor.

29. The subordinate court considered the application seeking to cite the Appellant for contempt of court for interfering with the beacons, after hearing the parties, and issued a warrant for his arrest.

30. The Court found that the beacons had been destroyed and that the Appellant had ploughed the land. The Court found that the Appellant was dissatisfied with the mode of distribution and was frustrating the implementation of the confirmed Grant.

31. Consequently, the subordinate court issued a warrant of arrest against the Appellant.

32. The Appellant submits that the learned magistrate erred in finding that the photographs relied upon by the Respondent constituted sufficient evidence of him destroying the beacons; he contends that the subordinate court erred in issuing a warrant of arrest against him.

33. The Respondent submitted that the process of survey was undertaken pursuant to the orders of the subordinate court made on 21st August 2023 and 4th December 2023.

34. The Respondent submitted that the survey process was nearing completion when the Appellant interfered with the implementation of the confirmed Grant by ploughing the land and destroying or removing the beacons placed by the County Surveyor.

35. The Respondent submitted that the photographs presented before the subordinate court, together with the other evidence placed before the Court, demonstrated that the beacons had been destroyed and that the Appellant was responsible for interfering with the survey.

36. The Respondent supported the subordinate court’s issuance of a warrant of arrest against the Appellant for his interference with the implementation of the confirmed Grant.

37. The Respondent urged the Court to dismiss the Appeal with costs.

38. I notice from the impugned order of 25th February 2025 that the subordinate court only issued a warrant of arrest and that there were subsequent proceedings upon the Appellant’s arrest which are not the subject of this appeal. The appeal is limited to the issuance of the warrant of arrest.

39. The Appellant did not deny that the beacons were interfered with.

40. There was evidence that the beacons were put in place by the surveyor and a report filed, which report was annexed to the affidavit of Francis Mwania Mutua sworn on 14th November 2024.

41. The Respondent averred in his supporting affidavit that on 7th November 2024 the Appellant used a tractor to cultivate on the commercial plots; the Appellant did not file a replying affidavit to rebut those allegations.

42. The Appellant conceded that he had ploughed the land; considered alongside the survey report and the uncontroverted averments in the Respondent’s supporting affidavit, there was therefore a basis for the subordinate court to find that the Appellant had interfered with the survey exercise and the beacons placed on the land.

43. The Appellant, in his submissions, has questioned the admissibility of the photos, which was not enumerated as a ground of appeal in the memorandum of appeal. The law does not permit an Appellant to argue a ground in support of his/her appeal that was not enumerated in the Memorandum of Appeal.

44. The subordinate court issued a warrant of arrest against the Appellant and the OCS Kangundo station was directed to effect it on 25th February 2025 (see page 36 of the Record of Appeal). It was executed as evidenced in the ruling on the Appellant’s application by Lady Justice Maina.

45. The Appellant prays for setting aside of the warrants of arrest which have already been executed; the execution of the warrants renders the relief sought incapable of being granted.

46. In light of all the foregoing, I find the appeal is without merit.

Consequently, I order as follows;

A. The Appeal is hereby dismissed with costs to the Respondent.

Dated, signed and delivered at Mombasa via Microsoft Teams on 22nd October 2026

Emmanuel Bitta

Judge of the High Court

In the presence of;

Nechesah C/A

Khadiesi h/b for Kioko for the Appellant

Ngulukyo for the Respondent