REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
SUCCESSION APPEAL NO. E007 OF 2024
JOHN AMENA AMENDI………………………………………………….APPELLANT
VERSUS
NELSON AMENDI………………………..………………………..1ST RESPONDENT
LINNET MIREHANE………………………………………………2ND RESPONDENT
ISAAC AMENDI…………………………………………………....3RD RESPONDENT
BILLY AMENDI…………………………………..………………..4TH RESPONDENT
Coram: Before Justice R. Nyakundi
Amena Amendi J & Co. Advocates
Wekesa S. Wekesa Advocates
DIRECTIONS
Background
1. This matter is before Court by dint of memorandum of appeal filed on Court
on 21st October 2024 arising out if a ruling of Hon. J Ogonda in Succession
Cause No. 89 of 2016 on an application and ruling delivered on 1st October
2024. The appellant is aggrieved and intended to appeal based on the
following grounds:
a. The learned trial Magistrate erred in law when she failed to consider that
the Appellant’s entire application, though served on all the Respondents
remained completely unopposed.
b. The learned trial Magistrate erred in law by failing to address herself to the
Appellant's prayer 4 in his said application and /or failing to give reasons
for not granting the prayer thereby occasioning injustice to the Appellant.
c. The learned trial Magistrate erred in law and fact in dismissing the
Appellant's prayer 5 and impliedly inputting a wrong motive to the appellant
for making the prayer.
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SUCCESSION CAUSE NO. E007 OF 2024
d. The learned trial Magistrate erred in law in failing to grand the Appellant's
prayer 7 in precise and enforceable terms or at all.
e. The learned trial Magistrate erred in law and fact by deviating from the
issues/prayers raised by the parties in their respective applications and
addressing extraneous issues and matters not raised or canvassed by the
parties.
f. The learned trial Magistrate erred in law and fact in engaging in generalities
and blanket condemnation of all administrators thereby making erroneous
findings leading to wrong conclusions and thereafter issuing orders that
were uncalled for and that are near impossible to comply with or enforce
g. The learned trial Magistrate erred in law and fact in ignoring and/or
appearing to sit on appeal against or overruling aspects of the ruling of her
sister Magistrate Hon. Rose M. Ndombi (PM) dated 30th March 2023 without
the prompting of any of the parties.
h. The learned trial Magistrate erred in law and fact in stating that the
Appellant's application dated 18th March 2024 was similar to 3rd
Administrator's application dated 16th May 2024 thereby arriving at wrong
conclusions and occasioning injustice.
i.
Reasons wherefore the Appellant prays that:
a) This appeal be allowed.
b) The unopposed prayers of the Appellant be granted and considered on
merit
c) 1st and 2nd Respondents be condemned to pay costs of this appeal.
2. Soon thereafter there have been a series of mention, however on 31st January
2026 one John Amena Amendi filed an affidavit in response for above to show
course dated 14th July 2025 in which he averred as follows:
a. THAT I now have managed to access this NTSC through the Court registry
and I now proceed to the same.
b. THAT this appeal arises out of the ruling of Hon Rose M. Ndombi in the
Vihiga P.M Succ. CA of 2016
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SUCCESSION CAUSE NO. E007 OF 2024
c. THAT being dissatisfied with the same ruling I discussed the matter with
my Advocate on record Wekesa and dully instructed him to profer an appeal
against the said ruling and serve all the other Respondents
d. THAT after I gave the instructions I followed up very closely with the said
Advocate and index him that I was aware that zone of the other parties had
applied for proceedings and that the typing already underway so he should
apply and pay for a copy as soon as possible
e. THAT on or about 9th December 2024, it became apparent to me that there
was a breakdown in communication between my said advocate and myself.
f. THAT because the said advocate was handling 2 different matters for me I
requested him to such 2 files to me on the undertaking that I would pay him
either agreed or taxed fees
g. THAT the Counsel subsequently informed me that he had misplaced or lost
one of the files but nevertheless he did not surrender to me the file that was
still in his possession which is the very in this matter.
h. THAT Counsel neither made any demand for fees nor filed any bill for
taxation but he kept quite failed to answer my telephone calls.
i.
j.
THAT due to the foregoing reasons I had no knowledge whatsoever as to
what was happening the appeal.
THAT he neither informed me about this NTSC nor gave to me a copy thereof.
k. THAT I then requested through WhatsApp that the Counsel do agree by
consent to let the firm Amena Amendi J.and Company Advocates to take
over the representation from him upon the late undertaking to pay to
Counsel Wekesa either agreed or taxed fees but again he never responded
l.
THAT up to the time of swearing this affidavit the Court had I not uploaded
the NTSC on the e-filing system and therefore I have had tremendous
difficulties in accessing the NTSC as I have had on the Court's physical
registry.
3
SUCCESSION CAUSE NO. E007 OF 2024
m. THAT failure to have this appeal prosecuted or progressed through the
system is not due to nor default on my part but due to non
miscommunication of counsel.
n. THAT the appeal raises serious questions of fact and law and I and other
family members I not of the estate administrators would be highly
prejudiced if it was disposed off other than on me
3. From my reading of this instrument is not very clear who bears the greatest
responsibility for delay of the appeal being prosecuted. In the proceedings
conducted prior to this day it may be seen that the intended appellant has
not prosecuted the appeal but no evidence that propose protocols and
directions have been undertaken and this Court is indeed unable to
determine the notice to show cause without necessary understanding as to
what happened to this very old memorandum of appeal which has not seen
the light of the day.
4. I therefore decline to conclusively rule on the notice to show cause and call to
order the parties involved in this litigation to explain the circumstances which
are prevailing in the case docket which has occasioned inordinate delay to
prosecute the appeal. The status conference shall be held before this Court
on 4th of June 2026 and the attendance of the parties is indispensable.
GIVEN UNDER MY HAND AND SEAL OF THIS HONORABLE COURT THIS
26TH DAY OF MAY 2026.
IN THE HIGH COURT AT VIHIGA
SUCCESSION APPEAL NO. E007 OF 2024
JOHN AMENA AMENDI………………………………………………….APPELLANT
VERSUS
NELSON AMENDI………………………..………………………..1ST RESPONDENT
LINNET MIREHANE………………………………………………2ND RESPONDENT
ISAAC AMENDI…………………………………………………....3RD RESPONDENT
BILLY AMENDI…………………………………..………………..4TH RESPONDENT
Coram: Before Justice R. Nyakundi
Amena Amendi J & Co. Advocates
Wekesa S. Wekesa Advocates
DIRECTIONS
Background
1. This matter is before Court by dint of memorandum of appeal filed on Court
on 21st October 2024 arising out if a ruling of Hon. J Ogonda in Succession
Cause No. 89 of 2016 on an application and ruling delivered on 1st October
2024. The appellant is aggrieved and intended to appeal based on the
following grounds:
a. The learned trial Magistrate erred in law when she failed to consider that
the Appellant’s entire application, though served on all the Respondents
remained completely unopposed.
b. The learned trial Magistrate erred in law by failing to address herself to the
Appellant's prayer 4 in his said application and /or failing to give reasons
for not granting the prayer thereby occasioning injustice to the Appellant.
c. The learned trial Magistrate erred in law and fact in dismissing the
Appellant's prayer 5 and impliedly inputting a wrong motive to the appellant
for making the prayer.
1
SUCCESSION CAUSE NO. E007 OF 2024
d. The learned trial Magistrate erred in law in failing to grand the Appellant's
prayer 7 in precise and enforceable terms or at all.
e. The learned trial Magistrate erred in law and fact by deviating from the
issues/prayers raised by the parties in their respective applications and
addressing extraneous issues and matters not raised or canvassed by the
parties.
f. The learned trial Magistrate erred in law and fact in engaging in generalities
and blanket condemnation of all administrators thereby making erroneous
findings leading to wrong conclusions and thereafter issuing orders that
were uncalled for and that are near impossible to comply with or enforce
g. The learned trial Magistrate erred in law and fact in ignoring and/or
appearing to sit on appeal against or overruling aspects of the ruling of her
sister Magistrate Hon. Rose M. Ndombi (PM) dated 30th March 2023 without
the prompting of any of the parties.
h. The learned trial Magistrate erred in law and fact in stating that the
Appellant's application dated 18th March 2024 was similar to 3rd
Administrator's application dated 16th May 2024 thereby arriving at wrong
conclusions and occasioning injustice.
i.
Reasons wherefore the Appellant prays that:
a) This appeal be allowed.
b) The unopposed prayers of the Appellant be granted and considered on
merit
c) 1st and 2nd Respondents be condemned to pay costs of this appeal.
2. Soon thereafter there have been a series of mention, however on 31st January
2026 one John Amena Amendi filed an affidavit in response for above to show
course dated 14th July 2025 in which he averred as follows:
a. THAT I now have managed to access this NTSC through the Court registry
and I now proceed to the same.
b. THAT this appeal arises out of the ruling of Hon Rose M. Ndombi in the
Vihiga P.M Succ. CA of 2016
2
SUCCESSION CAUSE NO. E007 OF 2024
c. THAT being dissatisfied with the same ruling I discussed the matter with
my Advocate on record Wekesa and dully instructed him to profer an appeal
against the said ruling and serve all the other Respondents
d. THAT after I gave the instructions I followed up very closely with the said
Advocate and index him that I was aware that zone of the other parties had
applied for proceedings and that the typing already underway so he should
apply and pay for a copy as soon as possible
e. THAT on or about 9th December 2024, it became apparent to me that there
was a breakdown in communication between my said advocate and myself.
f. THAT because the said advocate was handling 2 different matters for me I
requested him to such 2 files to me on the undertaking that I would pay him
either agreed or taxed fees
g. THAT the Counsel subsequently informed me that he had misplaced or lost
one of the files but nevertheless he did not surrender to me the file that was
still in his possession which is the very in this matter.
h. THAT Counsel neither made any demand for fees nor filed any bill for
taxation but he kept quite failed to answer my telephone calls.
i.
j.
THAT due to the foregoing reasons I had no knowledge whatsoever as to
what was happening the appeal.
THAT he neither informed me about this NTSC nor gave to me a copy thereof.
k. THAT I then requested through WhatsApp that the Counsel do agree by
consent to let the firm Amena Amendi J.and Company Advocates to take
over the representation from him upon the late undertaking to pay to
Counsel Wekesa either agreed or taxed fees but again he never responded
l.
THAT up to the time of swearing this affidavit the Court had I not uploaded
the NTSC on the e-filing system and therefore I have had tremendous
difficulties in accessing the NTSC as I have had on the Court's physical
registry.
3
SUCCESSION CAUSE NO. E007 OF 2024
m. THAT failure to have this appeal prosecuted or progressed through the
system is not due to nor default on my part but due to non
miscommunication of counsel.
n. THAT the appeal raises serious questions of fact and law and I and other
family members I not of the estate administrators would be highly
prejudiced if it was disposed off other than on me
3. From my reading of this instrument is not very clear who bears the greatest
responsibility for delay of the appeal being prosecuted. In the proceedings
conducted prior to this day it may be seen that the intended appellant has
not prosecuted the appeal but no evidence that propose protocols and
directions have been undertaken and this Court is indeed unable to
determine the notice to show cause without necessary understanding as to
what happened to this very old memorandum of appeal which has not seen
the light of the day.
4. I therefore decline to conclusively rule on the notice to show cause and call to
order the parties involved in this litigation to explain the circumstances which
are prevailing in the case docket which has occasioned inordinate delay to
prosecute the appeal. The status conference shall be held before this Court
on 4th of June 2026 and the attendance of the parties is indispensable.
GIVEN UNDER MY HAND AND SEAL OF THIS HONORABLE COURT THIS
26TH DAY OF MAY 2026.