1. Before this Court is the application dated 29th April 2025 by Daniel Nyabaro Omwega. The Applicant seeks that this Court reviews, varies, vacates, discharges and/or sets aside the ruling and orders made on 8th July 2024, together with consequential orders arising from the application dated 28th July 2021. He further seeks that the grant issued on 30th May 1994 and confirmed on 2nd March 1995 to the late Elizabeth Bochere Omwega be deemed proper and legal; that the grant and/or certificate issued in the joint names of Daniel Nyabaro Omwega and Kennedy Omwega Magachi be revoked or cancelled; and that he be recognised as the sole lawful beneficiary of land parcel Majoge/Kanyimbo/385.
2. The affidavit of the Applicant supports the application. In summary, the Applicant contends that the Objector/Respondent, Kennedy Omwega Magachi, is not a son or beneficiary of the estate of the late Omwega Obuya. He argues that the deceased had only one lawful surviving son, namely himself, through the late Elizabeth Bochere Omwega. He further contends that the earlier grant in favour of Elizabeth Bochere Omwega was wrongly interfered with and that the subsequent grant in the joint names of himself and the Objector was obtained through concealment, misrepresentation and/or an erroneous appreciation of the facts and the law.
3. The Applicant also argues that the proceedings leading to the orders of 8th July 2024 were defective because they were taken after the death of Elizabeth Bochere Omwega and without proper substitution. It is his position that the advocate who appeared in the earlier proceedings was on record for the late Elizabeth and not for him personally. He therefore urges the Court to find that the resultant orders were a nullity or, at the very least, were made in circumstances calling for review.
4. The application is opposed by the Objector/Respondent, Kennedy Omwega Magachi, through his replying affidavit sworn on 28th May 2025. He deposes that the deceased, Omwega Obuya, died on 10th August 1973 and was survived by two wives, namely Elizabeth Bochere Omwega and Nyamereri/Nyamereria Omwega. He avers that each house had one son: Daniel Nyabaro Omwega from the first house and Kennedy Omwega Magachi from the second house.
5. The Objector further states that land parcel Majoge/Kanyimbo/385, measuring approximately 4.4 hectares, was the only known ancestral land of the deceased and had been physically occupied and/or divided between the two houses. He argues that the original grant issued to Elizabeth Bochere Omwega was obtained by concealment of the existence of the second house and that this Court was therefore right to revoke or interfere with that grant and to issue a fresh grant in the joint names of the two sons.
6. The Objector’s position is that the issues raised by the Applicant are not new. According to him, the Court has previously addressed the question of whether the deceased owned two houses and whether the Objector had an interest in the estate. He therefore urges the Court to dismiss the present application as Resdicdicata as it is an attempt to delay the conclusion of the administration estate which has been pending since 1993.
7. The parties filed written submissions, which I have considered alongside the affidavits, annexures and the court record.
Issues for determination
8. In my view, the following issues arise for determination:
i. Whether this Court has jurisdiction to entertain the application for review and revocation/cancellation of the grant;
ii. Whether the Applicant has met the threshold for review or setting aside of the orders made on 8th July 2024 and the consequential grant/orders;
iii. Whether the Objector/Respondent lacks locus standi or interest in the estate to justify his exclusion from administration;
iv. Whether the grant issued in the joint names of the Applicant and the Objector should be revoked or cancelled; and
v. What orders should issue on costs and further administration of the estate?
Analysis and determination
9. This Court’s jurisdiction in succession matters is anchored in section 47 of the Law of Succession Act, which gives the High Court power to entertain applications and determine disputes under the Act and to make such orders as may be expedient. Rule 73 of the Probate and Administration Rules also preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
10. In addition, Rule 63 of the Probate and Administration Rules imports, among others, Order 45 of the Civil Procedure Rules into succession proceedings. Therefore, a succession court may review its orders where the statutory threshold is met. That threshold includes discovery of new and important matter or evidence which, despite due diligence, was not within the applicant’s knowledge; an error apparent on the face of the record; or any other sufficient reason. The application must also be made without unreasonable delay.
11. The Applicant has also invoked the jurisdiction of the Court in relation to the revocation of grants. Section 76 of the Law of Succession Act permits a grant, whether confirmed or not, to be revoked or annulled where the proceedings to obtain it were defective in substance; where it was obtained fraudulently by false statement or concealment of material facts; where it was obtained by an untrue allegation of an essential fact; where the administrator has failed in the duties of administration; or where the grant has become useless and inoperative through subsequent circumstances.
12. The Court therefore has jurisdiction to consider the application. The question is whether the Applicant has brought himself within the applicable legal threshold.
13. The first limb of the Applicant’s case is that Kennedy Omwega Magachi is neither a son nor a beneficiary of the deceased. The Applicant therefore argues that the earlier grant in favour of Elizabeth Bochere Omwega ought to be restored or deemed valid and that the Objector should be removed from administration.
14. I have considered the rival positions on this point. The Objector has consistently asserted that the deceased had two wives and two houses. He has also asserted that he is the deceased's son through the second house. He refers to the history of the occupation of the land parcel Majoge/Kanyimbo/385 and to previous proceedings in which the question of the two houses was raised.
15. On the other hand, the Applicant denies the Objector’s alleged relationship to the deceased. However, the material placed before the Court in the present application does not amount to new and important evidence capable of dislodging the Court’s earlier findings or orders. The Applicant’s position is substantially arguing of the same question: whether the Objector is a son or beneficiary of the deceased.
16. A review is not an appeal in disguise. A party that is dissatisfied with a finding of fact or law by a court cannot, under the guise of review, invite the same court to sit on appeal over its own decision. The Applicant was required to demonstrate an error apparent on the face of the record, discovery of genuinely new evidence, or another sufficient reason within the meaning of Order 45. He has not done so.
17. The Applicant relied on the fact that earlier orders were made in 2020 and 2021 and contended that those orders were not appealed against. However, those matters formed part of the history of the cause and were matters capable of being placed before the Court at the time the orders of 8th July 2024 were made. They do not, without more, constitute new evidence. Nor do they demonstrate an error apparent on the face of the record.
18. The Applicant has further argued that the proceedings leading to the orders of 8th July 2024 were defective because Elizabeth Bochere Omwega had died and had not been substituted. It is common ground that Elizabeth Bochere Omwega, the original petitioner and holder of the earlier grant, is deceased. Her death is relevant, but it does not have the effect urged by the Applicant.
19. Succession proceedings are concerned with the administration of the estate of the deceased person whose estate is before the Court, in this case, the estate of Omwega Obuya. The death of an administrator does not terminate the estate proceedings. Rather, it calls for the Court to ensure that the estate is placed under a proper administrator or administrators. Indeed, one of the grounds under section 76 is that a grant may become useless and inoperative through subsequent circumstances.
20. It would therefore not serve the estate to revive, for purposes of future administration, a grant held by a deceased administrator. The proper course is to appoint a fit person or fit persons to complete the administration. In a disputed estate where two rival houses are asserted, the Court is entitled, in the interests of all concerned, to appoint representatives from the competing interests so that the estate is preserved and administered transparently.
21. Section 66 of the Law of Succession Act gives the Court final discretion as to the person or persons to whom a grant should be made, guided by the order of preference set out therein. Where there is a contest between alleged beneficiaries, especially in a long-running family dispute, a joint grant may be appropriate to protect the interests of all sides pending confirmation, distribution or final implementation.
22. I am therefore not persuaded that the inclusion of the Objector as a co-administrator, in the circumstances of this cause, was an error apparent on the face of the record. On the contrary, it was a prudent measure to ensure that neither side deals with the estate to the exclusion of the other.
23. The Applicant’s prayer that the grant issued to the late Elizabeth Bochere Omwega on 30th May 1994 and confirmed on 2nd March 1995 be deemed proper and legal also presents difficulty. That grant has been the subject of challenge for many years. The central complaint against it was that it omitted the alleged second house of the deceased. Whether viewed from the perspective of the earlier revocation proceedings or from the perspective of the orders of 8th July 2024, the old grant is not a suitable instrument for completing the administration of the estate at this stage.
24. Further, the Applicant’s prayer would have the practical effect of excluding the Objector entirely before the Court has conclusively dealt with all competing claims to the estate. That would be prejudicial in a matter where the Objector has asserted a long-standing beneficial interest and where the Court has previously acted on the basis that the deceased had two houses.
25. The Court is also not persuaded that the Objector lacked locus standi to move the Court. For purposes of section 76 of the Law of Succession Act, an application may be made by an interested party. A person who asserts to be a son of the deceased and who claims that a house of the deceased was omitted from the petition plainly has sufficient interest to approach the Court. Whether his ultimate beneficial share is established is a matter to be determined on evidence and at the appropriate stage of confirmation, distribution or implementation. It is not a basis, at this stage, for striking him out of the administration altogether.
26. The Applicant has alleged fraud, concealment and falsehood in the issuance of the joint grant. Fraud is a serious allegation and must be proved by cogent evidence. The Applicant has not placed before the Court evidence sufficient to show that the joint grant was procured by fraud, concealment of material facts or an untrue allegation of an essential fact. The record instead shows a long-standing dispute between two sides of the family, and the joint grant appears to have been issued to preserve the estate and enable its balanced administration.
27. The Court must also take into account the age of this cause. The deceased died in 1973. The succession cause was filed in 1993. The dispute has remained in court for decades. The Court should be slow to encourage repeated interlocutory applications which re-open questions already considered, unless a clear legal basis is demonstrated.
28. Whether one describes the present application as res judicata in the strict sense or as an abuse of the Court process in the broader sense, the result is the same. Section 7 of the Civil Procedure Act bars Courts from dealing with issues previously dealt with in the same suit between the same parties or parties claiming through them over the same subject matter. The Court cannot permit parties to endlessly relitigate the same questions under differently framed applications. Litigation must come to an end, especially in succession matters where delay directly affects the beneficiaries and the preservation of estate property. The issue of whether the respondent is entitled to inherit the deceased's estate was addressed in the ruling dated 8.7.24 and in Ogembo Land Disputes Tribunal case no. 9 of 2010 dealt with the issue of whether the respondent was a son of the deceased and found in the affirmative.
29. I therefore find that the Applicant has failed to meet the threshold for review or setting aside of the orders made on 8th July 2024. The recourse of the applicant lies on an appeal and not review .
30. The appropriate course is to maintain the joint administration and direct the administrators to move with speed to complete the administration of the estate.
31. Disposition
32.For the foregoing reasons, I make the following orders:
a. The application dated 29th April 2025 is hereby dismissed.
b. The grant and/or certificate issued pursuant to the orders of this Court in the joint names of Daniel Nyabaro Omwega and Kennedy Omwega Magachi shall remain in force.
c. The administration of the estate herein be concluded within 120 days from today.
d. To expedite completion administration ,the Kisii County surveyor to visit the land parcel no. Majoge/Kanyimbo/385 and implement orders dated 8.7.24 and file his report within 45 days from today . Both parties to equally share survey fees .
f. Each party shall bear it’s own .
g. It is so ordered.
T.A. ODERA
JUDGE
6.5.26
DELIVERED VIRTUALLY VIA CTS OF THIS 8TH DAY OF MAY 2026
2. The affidavit of the Applicant supports the application. In summary, the Applicant contends that the Objector/Respondent, Kennedy Omwega Magachi, is not a son or beneficiary of the estate of the late Omwega Obuya. He argues that the deceased had only one lawful surviving son, namely himself, through the late Elizabeth Bochere Omwega. He further contends that the earlier grant in favour of Elizabeth Bochere Omwega was wrongly interfered with and that the subsequent grant in the joint names of himself and the Objector was obtained through concealment, misrepresentation and/or an erroneous appreciation of the facts and the law.
3. The Applicant also argues that the proceedings leading to the orders of 8th July 2024 were defective because they were taken after the death of Elizabeth Bochere Omwega and without proper substitution. It is his position that the advocate who appeared in the earlier proceedings was on record for the late Elizabeth and not for him personally. He therefore urges the Court to find that the resultant orders were a nullity or, at the very least, were made in circumstances calling for review.
4. The application is opposed by the Objector/Respondent, Kennedy Omwega Magachi, through his replying affidavit sworn on 28th May 2025. He deposes that the deceased, Omwega Obuya, died on 10th August 1973 and was survived by two wives, namely Elizabeth Bochere Omwega and Nyamereri/Nyamereria Omwega. He avers that each house had one son: Daniel Nyabaro Omwega from the first house and Kennedy Omwega Magachi from the second house.
5. The Objector further states that land parcel Majoge/Kanyimbo/385, measuring approximately 4.4 hectares, was the only known ancestral land of the deceased and had been physically occupied and/or divided between the two houses. He argues that the original grant issued to Elizabeth Bochere Omwega was obtained by concealment of the existence of the second house and that this Court was therefore right to revoke or interfere with that grant and to issue a fresh grant in the joint names of the two sons.
6. The Objector’s position is that the issues raised by the Applicant are not new. According to him, the Court has previously addressed the question of whether the deceased owned two houses and whether the Objector had an interest in the estate. He therefore urges the Court to dismiss the present application as Resdicdicata as it is an attempt to delay the conclusion of the administration estate which has been pending since 1993.
7. The parties filed written submissions, which I have considered alongside the affidavits, annexures and the court record.
Issues for determination
8. In my view, the following issues arise for determination:
i. Whether this Court has jurisdiction to entertain the application for review and revocation/cancellation of the grant;
ii. Whether the Applicant has met the threshold for review or setting aside of the orders made on 8th July 2024 and the consequential grant/orders;
iii. Whether the Objector/Respondent lacks locus standi or interest in the estate to justify his exclusion from administration;
iv. Whether the grant issued in the joint names of the Applicant and the Objector should be revoked or cancelled; and
v. What orders should issue on costs and further administration of the estate?
Analysis and determination
9. This Court’s jurisdiction in succession matters is anchored in section 47 of the Law of Succession Act, which gives the High Court power to entertain applications and determine disputes under the Act and to make such orders as may be expedient. Rule 73 of the Probate and Administration Rules also preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
10. In addition, Rule 63 of the Probate and Administration Rules imports, among others, Order 45 of the Civil Procedure Rules into succession proceedings. Therefore, a succession court may review its orders where the statutory threshold is met. That threshold includes discovery of new and important matter or evidence which, despite due diligence, was not within the applicant’s knowledge; an error apparent on the face of the record; or any other sufficient reason. The application must also be made without unreasonable delay.
11. The Applicant has also invoked the jurisdiction of the Court in relation to the revocation of grants. Section 76 of the Law of Succession Act permits a grant, whether confirmed or not, to be revoked or annulled where the proceedings to obtain it were defective in substance; where it was obtained fraudulently by false statement or concealment of material facts; where it was obtained by an untrue allegation of an essential fact; where the administrator has failed in the duties of administration; or where the grant has become useless and inoperative through subsequent circumstances.
12. The Court therefore has jurisdiction to consider the application. The question is whether the Applicant has brought himself within the applicable legal threshold.
13. The first limb of the Applicant’s case is that Kennedy Omwega Magachi is neither a son nor a beneficiary of the deceased. The Applicant therefore argues that the earlier grant in favour of Elizabeth Bochere Omwega ought to be restored or deemed valid and that the Objector should be removed from administration.
14. I have considered the rival positions on this point. The Objector has consistently asserted that the deceased had two wives and two houses. He has also asserted that he is the deceased's son through the second house. He refers to the history of the occupation of the land parcel Majoge/Kanyimbo/385 and to previous proceedings in which the question of the two houses was raised.
15. On the other hand, the Applicant denies the Objector’s alleged relationship to the deceased. However, the material placed before the Court in the present application does not amount to new and important evidence capable of dislodging the Court’s earlier findings or orders. The Applicant’s position is substantially arguing of the same question: whether the Objector is a son or beneficiary of the deceased.
16. A review is not an appeal in disguise. A party that is dissatisfied with a finding of fact or law by a court cannot, under the guise of review, invite the same court to sit on appeal over its own decision. The Applicant was required to demonstrate an error apparent on the face of the record, discovery of genuinely new evidence, or another sufficient reason within the meaning of Order 45. He has not done so.
17. The Applicant relied on the fact that earlier orders were made in 2020 and 2021 and contended that those orders were not appealed against. However, those matters formed part of the history of the cause and were matters capable of being placed before the Court at the time the orders of 8th July 2024 were made. They do not, without more, constitute new evidence. Nor do they demonstrate an error apparent on the face of the record.
18. The Applicant has further argued that the proceedings leading to the orders of 8th July 2024 were defective because Elizabeth Bochere Omwega had died and had not been substituted. It is common ground that Elizabeth Bochere Omwega, the original petitioner and holder of the earlier grant, is deceased. Her death is relevant, but it does not have the effect urged by the Applicant.
19. Succession proceedings are concerned with the administration of the estate of the deceased person whose estate is before the Court, in this case, the estate of Omwega Obuya. The death of an administrator does not terminate the estate proceedings. Rather, it calls for the Court to ensure that the estate is placed under a proper administrator or administrators. Indeed, one of the grounds under section 76 is that a grant may become useless and inoperative through subsequent circumstances.
20. It would therefore not serve the estate to revive, for purposes of future administration, a grant held by a deceased administrator. The proper course is to appoint a fit person or fit persons to complete the administration. In a disputed estate where two rival houses are asserted, the Court is entitled, in the interests of all concerned, to appoint representatives from the competing interests so that the estate is preserved and administered transparently.
21. Section 66 of the Law of Succession Act gives the Court final discretion as to the person or persons to whom a grant should be made, guided by the order of preference set out therein. Where there is a contest between alleged beneficiaries, especially in a long-running family dispute, a joint grant may be appropriate to protect the interests of all sides pending confirmation, distribution or final implementation.
22. I am therefore not persuaded that the inclusion of the Objector as a co-administrator, in the circumstances of this cause, was an error apparent on the face of the record. On the contrary, it was a prudent measure to ensure that neither side deals with the estate to the exclusion of the other.
23. The Applicant’s prayer that the grant issued to the late Elizabeth Bochere Omwega on 30th May 1994 and confirmed on 2nd March 1995 be deemed proper and legal also presents difficulty. That grant has been the subject of challenge for many years. The central complaint against it was that it omitted the alleged second house of the deceased. Whether viewed from the perspective of the earlier revocation proceedings or from the perspective of the orders of 8th July 2024, the old grant is not a suitable instrument for completing the administration of the estate at this stage.
24. Further, the Applicant’s prayer would have the practical effect of excluding the Objector entirely before the Court has conclusively dealt with all competing claims to the estate. That would be prejudicial in a matter where the Objector has asserted a long-standing beneficial interest and where the Court has previously acted on the basis that the deceased had two houses.
25. The Court is also not persuaded that the Objector lacked locus standi to move the Court. For purposes of section 76 of the Law of Succession Act, an application may be made by an interested party. A person who asserts to be a son of the deceased and who claims that a house of the deceased was omitted from the petition plainly has sufficient interest to approach the Court. Whether his ultimate beneficial share is established is a matter to be determined on evidence and at the appropriate stage of confirmation, distribution or implementation. It is not a basis, at this stage, for striking him out of the administration altogether.
26. The Applicant has alleged fraud, concealment and falsehood in the issuance of the joint grant. Fraud is a serious allegation and must be proved by cogent evidence. The Applicant has not placed before the Court evidence sufficient to show that the joint grant was procured by fraud, concealment of material facts or an untrue allegation of an essential fact. The record instead shows a long-standing dispute between two sides of the family, and the joint grant appears to have been issued to preserve the estate and enable its balanced administration.
27. The Court must also take into account the age of this cause. The deceased died in 1973. The succession cause was filed in 1993. The dispute has remained in court for decades. The Court should be slow to encourage repeated interlocutory applications which re-open questions already considered, unless a clear legal basis is demonstrated.
28. Whether one describes the present application as res judicata in the strict sense or as an abuse of the Court process in the broader sense, the result is the same. Section 7 of the Civil Procedure Act bars Courts from dealing with issues previously dealt with in the same suit between the same parties or parties claiming through them over the same subject matter. The Court cannot permit parties to endlessly relitigate the same questions under differently framed applications. Litigation must come to an end, especially in succession matters where delay directly affects the beneficiaries and the preservation of estate property. The issue of whether the respondent is entitled to inherit the deceased's estate was addressed in the ruling dated 8.7.24 and in Ogembo Land Disputes Tribunal case no. 9 of 2010 dealt with the issue of whether the respondent was a son of the deceased and found in the affirmative.
29. I therefore find that the Applicant has failed to meet the threshold for review or setting aside of the orders made on 8th July 2024. The recourse of the applicant lies on an appeal and not review .
30. The appropriate course is to maintain the joint administration and direct the administrators to move with speed to complete the administration of the estate.
31. Disposition
32.For the foregoing reasons, I make the following orders:
a. The application dated 29th April 2025 is hereby dismissed.
b. The grant and/or certificate issued pursuant to the orders of this Court in the joint names of Daniel Nyabaro Omwega and Kennedy Omwega Magachi shall remain in force.
c. The administration of the estate herein be concluded within 120 days from today.
d. To expedite completion administration ,the Kisii County surveyor to visit the land parcel no. Majoge/Kanyimbo/385 and implement orders dated 8.7.24 and file his report within 45 days from today . Both parties to equally share survey fees .
f. Each party shall bear it’s own .
g. It is so ordered.
T.A. ODERA
JUDGE
6.5.26
DELIVERED VIRTUALLY VIA CTS OF THIS 8TH DAY OF MAY 2026