REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 3 OF 2022
IN THE MATTER OF THE ESTATE OF MURUNGA NALWELISIE ( DECEASED)
RULING
1. In an amended notice of motion dated 31st July 2025, brought under sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules, the applicant seeks the following orders.
i. Spent
ii. THAT the honourable Court be pleased to stay the implementation of its ruling delivered on the 29 th September 2023, pending the hearing and determination of the application inter parties.
iii. THAT this honourable court be pleased to stay the implementation of its ruling delivered on 29 th September, 2023 pending the hearing and final determination of the substantive application.
iv. THAT the Honourable Court be pleased to recall, review, revoke and set aside of the ruling delivered on 29 th September 2023 and reinstate the substantive cause for the hearing of the protestors evidence.
v. THAT this Honourable Court be pleased to allow the inclusion of the evidence that was previously omitted is material and will aid the Court in arriving at a fair and just determination.
vi. THAT if the said Ruling dated 23 rd September 2023 has already been implemented in terms of allocation and subdivision of land parcel numbers NDIVISI /NDIVISI/ 502 and NDIVISI/NDIVISI/ 541, this honourable court be pleased to issue an order reinstating the said parcels to their original and respective status prior to the said implementation.
vii. Costs be in the cause.
2. The respondent has raised a preliminary objection dated 6 October 2025 to the entire application dated 31 July 2023, seeking that the application be struck out on the grounds that:
i. The applicant has no capacity to appear in these proceedings, nor has his counsel filed a Notice of Appointment of advocate
ii. The applicant had only 7 days to file his application, running from 3rd July 2025, contrary to section 59 of the Interpretation and General Provisions Act 9 Cap 2 Laws of Kenya and other enabling provisions of the law
3. The preliminary objection was opposed. The objection was canvassed by way of written submissions. The applicant submitted as follows: Jamin Marunga, the applicant, is the son of a beneficiary of the estate of the late Murunga Nalweleslie. He has authority under a Limited Grant of Letters of Administration ad litem, issued on 25 May 2020, in respect of the estate of Rabson Wegesa Murunga (deceased). Under sections 54 and 55 of the Law of Succession Act (Cap 160), a limited grant ad litem confers sufficient locus standi upon the grantee to represent the estate of the deceased person in any proceedings touching or affecting that estate. Further, section 76 of the Act recognises “Interested persons” as entitled to move the court in matters relating to the administration and distribution of the estate. Thus, being an administrator ad litem and a son of the beneficiary of the estate, the applicant fits within the definition. For this argument, reliance was placed on the case of In re Estate of Wahome Mewenje Ng’anga (Deceased) [2020] eKLR, where the court held that “a holder of a limited grant ad litem has the requisite capacity to institute or defend proceedings affecting the estate, so long as the proceedings are related to the deceased’s property and rights.”
4. Regarding the issue that the applicant filed his application outside the 7 days directed by the court, it was submitted that, as explained in the supplementary affidavit, the delay is not inordinate; that under section 59 of the Interpretation and General Provisions Act Cap2, computation of time allows for extension by the court where justice demands; that the section is permissive, not prohibitive; and that under Article 159 (2) (d) of the Constitution, the court is required to do justice without undue regard to procedural technicalities.
5. The objector submitted as follows: the Law of Succession Act provides that Letters of Administration pass to the deceased’s wife and children, not to a nephew, when the former is still alive. The applicant is a surreptitious litigant, evading his father’s estate and masking his uncle’s estate. Reliance was placed on the following cases, Touristic Union International & Another vs Jane Mbeyu & Another eKLR and Salat vs IEBC & 7 Others (2014) KLR. It was further submitted that the applicant did not apply for an extension of time, nor did the court issue an order or leave to extend beyond the 7 days.
DETERMINATION
6. I have considered rival submissions on the respondent's preliminary objection. The only issue for determination is whether the objection has merit.
7. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA 696, the Court of Appeal set out the principle of a preliminary objection as follows: “a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
8. Therefore, a preliminary objection should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection, if successful, should dispose of the suit.
9. Regarding the issue that the applicant has no capacity to appear in the matter, the applicant has exhibited a grant ad litem, obtained from the lower court on 20 May 2020, in respect of Rabson Wegesa Murunga, the deceased, who is the son of Murunga Nalwelisie. This grant confers on him the authority to represent the deceased's estate in matters affecting that estate. The respondent did not challenge this grant.
10. Following my ruling dated 13th March 2025 regarding the issue that the applicant’s counsel lacks capacity to appear in this matter, the firm of BS Advocates filed a Notice of Appointment to regularise its appearance for the applicant. This limb of the preliminary objection also fails.
11. Regarding the issue of filing the supplementary affidavit without the court’s leave, the applicant/respondent has admitted filing it late. I noted the provisions of section 59 of Cap 2 on extension of time. That provision allows the court to extend time. I agree with counsel for the applicant that the section is permissive, not prohibitive, when read with the provisions of Article 159 (2) (d). The delay cannot be said to be inordinate, as the court is required to administer justice without undue regard to procedural technicalities. No prejudice will be caused to the respondent if the affidavit is admitted as part of the record. I therefore find no merit in the preliminary raised and dismiss it with no order as to costs.
Dated, signed and delivered virtually on the 23 rd day of April 2026.
R. E. OUGO
JUDGE
In the presence of:
Miss Nekesa - For the Applicant
Mr. Waswa -For the Respondent
Wilkister - C/A
succession cause no. 3 of 2002- ruling on p/o 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 3 OF 2022
IN THE MATTER OF THE ESTATE OF MURUNGA NALWELISIE ( DECEASED)
RULING
1. In an amended notice of motion dated 31st July 2025, brought under sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules, the applicant seeks the following orders.
i. Spent
ii. THAT the honourable Court be pleased to stay the implementation of its ruling delivered on the 29 th September 2023, pending the hearing and determination of the application inter parties.
iii. THAT this honourable court be pleased to stay the implementation of its ruling delivered on 29 th September, 2023 pending the hearing and final determination of the substantive application.
iv. THAT the Honourable Court be pleased to recall, review, revoke and set aside of the ruling delivered on 29 th September 2023 and reinstate the substantive cause for the hearing of the protestors evidence.
v. THAT this Honourable Court be pleased to allow the inclusion of the evidence that was previously omitted is material and will aid the Court in arriving at a fair and just determination.
vi. THAT if the said Ruling dated 23 rd September 2023 has already been implemented in terms of allocation and subdivision of land parcel numbers NDIVISI /NDIVISI/ 502 and NDIVISI/NDIVISI/ 541, this honourable court be pleased to issue an order reinstating the said parcels to their original and respective status prior to the said implementation.
vii. Costs be in the cause.
2. The respondent has raised a preliminary objection dated 6 October 2025 to the entire application dated 31 July 2023, seeking that the application be struck out on the grounds that:
i. The applicant has no capacity to appear in these proceedings, nor has his counsel filed a Notice of Appointment of advocate
ii. The applicant had only 7 days to file his application, running from 3rd July 2025, contrary to section 59 of the Interpretation and General Provisions Act 9 Cap 2 Laws of Kenya and other enabling provisions of the law
3. The preliminary objection was opposed. The objection was canvassed by way of written submissions. The applicant submitted as follows: Jamin Marunga, the applicant, is the son of a beneficiary of the estate of the late Murunga Nalweleslie. He has authority under a Limited Grant of Letters of Administration ad litem, issued on 25 May 2020, in respect of the estate of Rabson Wegesa Murunga (deceased). Under sections 54 and 55 of the Law of Succession Act (Cap 160), a limited grant ad litem confers sufficient locus standi upon the grantee to represent the estate of the deceased person in any proceedings touching or affecting that estate. Further, section 76 of the Act recognises “Interested persons” as entitled to move the court in matters relating to the administration and distribution of the estate. Thus, being an administrator ad litem and a son of the beneficiary of the estate, the applicant fits within the definition. For this argument, reliance was placed on the case of In re Estate of Wahome Mewenje Ng’anga (Deceased) [2020] eKLR, where the court held that “a holder of a limited grant ad litem has the requisite capacity to institute or defend proceedings affecting the estate, so long as the proceedings are related to the deceased’s property and rights.”
4. Regarding the issue that the applicant filed his application outside the 7 days directed by the court, it was submitted that, as explained in the supplementary affidavit, the delay is not inordinate; that under section 59 of the Interpretation and General Provisions Act Cap2, computation of time allows for extension by the court where justice demands; that the section is permissive, not prohibitive; and that under Article 159 (2) (d) of the Constitution, the court is required to do justice without undue regard to procedural technicalities.
5. The objector submitted as follows: the Law of Succession Act provides that Letters of Administration pass to the deceased’s wife and children, not to a nephew, when the former is still alive. The applicant is a surreptitious litigant, evading his father’s estate and masking his uncle’s estate. Reliance was placed on the following cases, Touristic Union International & Another vs Jane Mbeyu & Another eKLR and Salat vs IEBC & 7 Others (2014) KLR. It was further submitted that the applicant did not apply for an extension of time, nor did the court issue an order or leave to extend beyond the 7 days.
DETERMINATION
6. I have considered rival submissions on the respondent's preliminary objection. The only issue for determination is whether the objection has merit.
7. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA 696, the Court of Appeal set out the principle of a preliminary objection as follows: “a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
8. Therefore, a preliminary objection should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid preliminary objection, if successful, should dispose of the suit.
9. Regarding the issue that the applicant has no capacity to appear in the matter, the applicant has exhibited a grant ad litem, obtained from the lower court on 20 May 2020, in respect of Rabson Wegesa Murunga, the deceased, who is the son of Murunga Nalwelisie. This grant confers on him the authority to represent the deceased's estate in matters affecting that estate. The respondent did not challenge this grant.
10. Following my ruling dated 13th March 2025 regarding the issue that the applicant’s counsel lacks capacity to appear in this matter, the firm of BS Advocates filed a Notice of Appointment to regularise its appearance for the applicant. This limb of the preliminary objection also fails.
11. Regarding the issue of filing the supplementary affidavit without the court’s leave, the applicant/respondent has admitted filing it late. I noted the provisions of section 59 of Cap 2 on extension of time. That provision allows the court to extend time. I agree with counsel for the applicant that the section is permissive, not prohibitive, when read with the provisions of Article 159 (2) (d). The delay cannot be said to be inordinate, as the court is required to administer justice without undue regard to procedural technicalities. No prejudice will be caused to the respondent if the affidavit is admitted as part of the record. I therefore find no merit in the preliminary raised and dismiss it with no order as to costs.
Dated, signed and delivered virtually on the 23 rd day of April 2026.
R. E. OUGO
JUDGE
In the presence of:
Miss Nekesa - For the Applicant
Mr. Waswa -For the Respondent
Wilkister - C/A
succession cause no. 3 of 2002- ruling on p/o 2