REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 40 OF 2002
IN THE MATTER OF THE ESTATE OF ANDREW WANJALA SIBUYA (DECEASED)
RICHARD WANJALA………………………...PETITIONER/APPLICANT
VERSUS
IRENE NEKESA WANJALA……………..1ST OBJECTOR/RESPONDENT
ROSELYNE NASIPWONI………..…….2ND OBJECTOR/RESPONDENT
AND
ARNOLD OMBONYA OKUTOYI T/A
ARMOK AUCTIONEERS…………..……INTENDED 3RD RESPONDENT
RULING
A. APPLICATION
1. By way of a Motion application dated 7th May 2025, the Petitioner/Applicant herein sought orders of stay of execution of the ruling of this Court dated 23rd November 2023, joinder of the intended 3rd Respondent as the 3rd Respondent in this cause and the setting aside of the ex-parte orders issued on 23rd November 2023.
2. The application was based on the grounds on the face of the Motion application and the Supporting Affidavit sworn by Richard Walanja, the Petitioner/Applicant on 7th May 2025. According to him, proper service was never effected upon him by the Objectors/Respondents herein and the conduct of the auctioneer was contrary to the Court process.
3. Opposing the Motion application, the Objectors herein vide Irene Nekesa Wanjala, 1st Objector/Respondent, swore a Replying Affidavit on 5th October 2025, wherein she averred that Applicant’s application was frivolous, vexatious and a waste of the Court’s due process. According to her, the Applicant herein had commenced succession proceedings with concealment of material facts from the Court leading to the issuance of a Grant on 18th April 2004. They commenced the requisite objection proceedings via application dated 25th October 2022, which was duly served upon the Applicant, but he failed to attend court resulting in grant of orders on 23rd November 2023.
4. The 1st Objector averred that service was effected upon the Applicant and lawful attachment done at the home of the 1st and 2nd wives of the Applicant at Lwanda village Khachonge Location. They disputed that the alleged residence at Sichei belonged to the Applicant’s 4th wife and that Applicant did not share any land with her and the alleged agreement dated 14th April 2009 was a fabrication by the Applicant and there is no specific land reference number captured.
5. The 1st Objector averred that the execution by the auctioneer was done diligently and according to the law as the Applicant was served with the requisite proclamation notice on 5th March 2025, to which her counsel was duly brief of the same vide a correspondence dated 6th March 2025, from the auctioneer.
6. According to her, the failure by the Applicant to comply with the proclamation notice for more than 21 days lead to attachment of his animals on 27th March 2025, prompting the Petitioner to visit the auctioneer’s offices and make a payment of Ksh. 30,000/= and Kshs. 60,000/= on 27th March 2025 and 1st April 2025 respectively. Further, the Applicant promised to clear the outstanding balance by close of business 1st April 2025, but he did not do so leading to the issuance of warrants of sale of moveable properties by this Court as the eventual sale of the animals on 2nd April 2025 at 10.00 a.m. to settle the outstanding balance.
7. She urged this Court to dismiss the Applicant’s application with costs to the Objectors/Respondents.
8. The auctioneer, Arnorld Ombonya Okutoyi, vide a Replying Affidavit sworn on 28th May 2025, averred that he received instructions to levy execution and repossession against the Applicant for purposes of realizing Kshs. 71, 2000/=. According to him, he duly executed his instructions as per the law and that the Applicant’s application is an afterthought.
9. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Only the Applicant complied with the Court directives.
B. DETERMINATION
10. I have considered the foregoing, the submissions filed on behalf of the Applicant herein and the authorities relied upon in support thereof. The only issue for determination is whether the Applicant’s application has merit.
11. The decision whether or not to set aside ex-parte ruling is discretionary is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116.
12. According to the Applicant, there was no service effected upon him for the application dated 25th October 2022 and the notification of sale and proclamation notice. Order 5 Rule 15 of the Civil Procedure Rules stipulates that, the serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.
13. I have perused the affidavit of service sworn on 2nd May 2023, by Kevin Sifuna, High Court Process Server. The process server does give detailed information on how he travelled to the Applicant’s home situated in Khachonge R.C. Primary School and he met with the Applicant seated outside his house and after introductions proceeded to effect service upon him of the application dated 25th October 2022. The process server knew the Applicant well prior to the date of service. He further swore an affidavit of service on 25th July 2023, wherein he stated that he effected service of the hearing notice dated 26th July 2023, on 19th July 2023, upon the Applicant herein. The details of the village elder he sought to escort him to the residence of the Applicant herein at Sichei. Finally, vide an affidavit of service sworn on 22nd November 2023, he states that he effected service of hearing notice dated 16th November 2023, upon the Applicant herein. The process server gave detailed information on how he travelled to the Applicant’s home situated in Khachonge R.C. Primary School and he met with the Applicant whom he gave the respective notice, but the Applicant declined to sign the process server’s copy.
14. On my perusal of the auctioneer’s notification of sale and proclamation notice it is clear that same were duly served upon the firm of M/S A.M. Murunga & Advocates, the then counsels of the Applicant herein prompting this Court to proceed to issue its orders on 18th March 2025.
15. I find that the applicant’s application dated 7th May 2025, lacks merit and it is dismissed with no order as to costs.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 27th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A by Kapten for Applicant
N/A by Murunga for the Objectors
Objectors/Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 40 OF 2002
IN THE MATTER OF THE ESTATE OF ANDREW WANJALA SIBUYA (DECEASED)
RICHARD WANJALA………………………...PETITIONER/APPLICANT
VERSUS
IRENE NEKESA WANJALA……………..1ST OBJECTOR/RESPONDENT
ROSELYNE NASIPWONI………..…….2ND OBJECTOR/RESPONDENT
AND
ARNOLD OMBONYA OKUTOYI T/A
ARMOK AUCTIONEERS…………..……INTENDED 3RD RESPONDENT
RULING
A. APPLICATION
1. By way of a Motion application dated 7th May 2025, the Petitioner/Applicant herein sought orders of stay of execution of the ruling of this Court dated 23rd November 2023, joinder of the intended 3rd Respondent as the 3rd Respondent in this cause and the setting aside of the ex-parte orders issued on 23rd November 2023.
2. The application was based on the grounds on the face of the Motion application and the Supporting Affidavit sworn by Richard Walanja, the Petitioner/Applicant on 7th May 2025. According to him, proper service was never effected upon him by the Objectors/Respondents herein and the conduct of the auctioneer was contrary to the Court process.
3. Opposing the Motion application, the Objectors herein vide Irene Nekesa Wanjala, 1st Objector/Respondent, swore a Replying Affidavit on 5th October 2025, wherein she averred that Applicant’s application was frivolous, vexatious and a waste of the Court’s due process. According to her, the Applicant herein had commenced succession proceedings with concealment of material facts from the Court leading to the issuance of a Grant on 18th April 2004. They commenced the requisite objection proceedings via application dated 25th October 2022, which was duly served upon the Applicant, but he failed to attend court resulting in grant of orders on 23rd November 2023.
4. The 1st Objector averred that service was effected upon the Applicant and lawful attachment done at the home of the 1st and 2nd wives of the Applicant at Lwanda village Khachonge Location. They disputed that the alleged residence at Sichei belonged to the Applicant’s 4th wife and that Applicant did not share any land with her and the alleged agreement dated 14th April 2009 was a fabrication by the Applicant and there is no specific land reference number captured.
5. The 1st Objector averred that the execution by the auctioneer was done diligently and according to the law as the Applicant was served with the requisite proclamation notice on 5th March 2025, to which her counsel was duly brief of the same vide a correspondence dated 6th March 2025, from the auctioneer.
6. According to her, the failure by the Applicant to comply with the proclamation notice for more than 21 days lead to attachment of his animals on 27th March 2025, prompting the Petitioner to visit the auctioneer’s offices and make a payment of Ksh. 30,000/= and Kshs. 60,000/= on 27th March 2025 and 1st April 2025 respectively. Further, the Applicant promised to clear the outstanding balance by close of business 1st April 2025, but he did not do so leading to the issuance of warrants of sale of moveable properties by this Court as the eventual sale of the animals on 2nd April 2025 at 10.00 a.m. to settle the outstanding balance.
7. She urged this Court to dismiss the Applicant’s application with costs to the Objectors/Respondents.
8. The auctioneer, Arnorld Ombonya Okutoyi, vide a Replying Affidavit sworn on 28th May 2025, averred that he received instructions to levy execution and repossession against the Applicant for purposes of realizing Kshs. 71, 2000/=. According to him, he duly executed his instructions as per the law and that the Applicant’s application is an afterthought.
9. Vide Court directions, this Court directed the parties to canvass the appeal by way of written submissions. Only the Applicant complied with the Court directives.
B. DETERMINATION
10. I have considered the foregoing, the submissions filed on behalf of the Applicant herein and the authorities relied upon in support thereof. The only issue for determination is whether the Applicant’s application has merit.
11. The decision whether or not to set aside ex-parte ruling is discretionary is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116.
12. According to the Applicant, there was no service effected upon him for the application dated 25th October 2022 and the notification of sale and proclamation notice. Order 5 Rule 15 of the Civil Procedure Rules stipulates that, the serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.
13. I have perused the affidavit of service sworn on 2nd May 2023, by Kevin Sifuna, High Court Process Server. The process server does give detailed information on how he travelled to the Applicant’s home situated in Khachonge R.C. Primary School and he met with the Applicant seated outside his house and after introductions proceeded to effect service upon him of the application dated 25th October 2022. The process server knew the Applicant well prior to the date of service. He further swore an affidavit of service on 25th July 2023, wherein he stated that he effected service of the hearing notice dated 26th July 2023, on 19th July 2023, upon the Applicant herein. The details of the village elder he sought to escort him to the residence of the Applicant herein at Sichei. Finally, vide an affidavit of service sworn on 22nd November 2023, he states that he effected service of hearing notice dated 16th November 2023, upon the Applicant herein. The process server gave detailed information on how he travelled to the Applicant’s home situated in Khachonge R.C. Primary School and he met with the Applicant whom he gave the respective notice, but the Applicant declined to sign the process server’s copy.
14. On my perusal of the auctioneer’s notification of sale and proclamation notice it is clear that same were duly served upon the firm of M/S A.M. Murunga & Advocates, the then counsels of the Applicant herein prompting this Court to proceed to issue its orders on 18th March 2025.
15. I find that the applicant’s application dated 7th May 2025, lacks merit and it is dismissed with no order as to costs.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 27th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A by Kapten for Applicant
N/A by Murunga for the Objectors
Objectors/Respondent
Peter Machoni – Court Assistant