' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E108 OF 2024
JOSEPHINE NANGILA ODERA………………………….APPELLANT
VERSUS
BENARD MUCHONJI…………………………………..RESPONDENT
RULING
1. The Appellant Josephine Nangila Odera has moved this court vide a notice of motion dated 25.7.2024, supported by her own affidavit of even date and she craves for the following orders: -
i. Spent
ii. That this application be certified as urgent and be heard ex parte in the first instance.
iii. That there be a stay of confirmation of grant pending hearing and determination of the intended appeal.
iv. That there be stay of execution of decree and all consequential orders pending hearing and determination of this suit.
2. The gist of the Applicant’s application is that she is aggrieved by the orders of revocation of grant made by the lower court on 11.6.2024 in Bungoma CMCC Succ No. 376 of 2017: Re Estate of Laban Wanyonyi alias Wanyonyi Muchonji hence this appeal. She thus craves for orders of stay of the confirmation of the said grant until this appeal is heard and determined.
3. The Respondent Benard Muchonji has opposed this application by way of an affidavit in reply sworn on 25.11.2024 wherein he deposes that he is not the administrator of the estate of the deceased wherefore this application is fatally and incurably defective. Further that the applicant is a stranger to the Estate as she is an estranged wife of his brother Cornelius Juma who has already petitioned to divorce the Appellant vide Bungoma CMCC Divorce Cause No. E011 of 2024.
4. This applicant filed a supplementary affidavit sworn on 3.3.2025 wherein she deposed that she is a lay person and thus not versed with the legal procedures. She maintained that the respondent is intermeddling with the estate of the deceased thus exposing her and her child to imminent loss of property.
Analysis and determination.
5. This application was canvassed by way of written submissions. I have duly considered the rival submissions of parties and the issues that arise for determination are:-
i. Whether this application is incurably and fatally defective.
ii. If not whether the Appellant has met the threshold for grant of orders of stay of confirmation of the grant issued to Titus Muchonju Wanyonyi on 8.9.2024 in Bungoma CMCC No. 380 of 2017: Re Estate of Laban Wanyonyi Muchonji.
6. The Appellant herein has lodged an appeal against a beneficiary of the Estate of the deceased, who is currently not an administrator given that the appointment of the Appellant and the Respondent was revoked and a new grant was issued on 8.9.2024 to Titus Muchonji Wanyonyi. I need not belabour the fact that the Respondent herein lacks the capacity to be sued on behalf of the estate of the deceased. Section 82 of the Law of Succession Act outlines the powers of the personal representatives as follows:
i. To enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
ii. To sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—
(i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and
(ii) no immovable property shall be sold before confirmation of the grant;
iii. To assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;
iv. To appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation: Provided that except so far as otherwise expressly provided by any will—
(i) no appropriation shall be made so as to affect adversely any specific legacy;
(ii) no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required.
7. In light of the fact that the Appeal herein is filed against one beneficiary and not the personal representative of Laban Wanyonyi Muchonji, the same is null and void ab initio and so are all attendant applications that are premised on the appeal herein.
8. In light of the above finding I need not delve into the question as to whether the Appellant has met the threshold for grant of orders of stay of the grant that is the subject of this appeal.
9. On the balance I do hereby dismiss the application herein with no orders as to costs.
Delivered, signed, and dated at Bungoma this 27th day of November, 2025.
MWANAISHA S. SHARIFF
JUDGE
In the presence of
Appellant
Respondent
'
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E108 OF 2024
JOSEPHINE NANGILA ODERA………………………….APPELLANT
VERSUS
BENARD MUCHONJI…………………………………..RESPONDENT
RULING
1. The Appellant Josephine Nangila Odera has moved this court vide a notice of motion dated 25.7.2024, supported by her own affidavit of even date and she craves for the following orders: -
i. Spent
ii. That this application be certified as urgent and be heard ex parte in the first instance.
iii. That there be a stay of confirmation of grant pending hearing and determination of the intended appeal.
iv. That there be stay of execution of decree and all consequential orders pending hearing and determination of this suit.
2. The gist of the Applicant’s application is that she is aggrieved by the orders of revocation of grant made by the lower court on 11.6.2024 in Bungoma CMCC Succ No. 376 of 2017: Re Estate of Laban Wanyonyi alias Wanyonyi Muchonji hence this appeal. She thus craves for orders of stay of the confirmation of the said grant until this appeal is heard and determined.
3. The Respondent Benard Muchonji has opposed this application by way of an affidavit in reply sworn on 25.11.2024 wherein he deposes that he is not the administrator of the estate of the deceased wherefore this application is fatally and incurably defective. Further that the applicant is a stranger to the Estate as she is an estranged wife of his brother Cornelius Juma who has already petitioned to divorce the Appellant vide Bungoma CMCC Divorce Cause No. E011 of 2024.
4. This applicant filed a supplementary affidavit sworn on 3.3.2025 wherein she deposed that she is a lay person and thus not versed with the legal procedures. She maintained that the respondent is intermeddling with the estate of the deceased thus exposing her and her child to imminent loss of property.
Analysis and determination.
5. This application was canvassed by way of written submissions. I have duly considered the rival submissions of parties and the issues that arise for determination are:-
i. Whether this application is incurably and fatally defective.
ii. If not whether the Appellant has met the threshold for grant of orders of stay of confirmation of the grant issued to Titus Muchonju Wanyonyi on 8.9.2024 in Bungoma CMCC No. 380 of 2017: Re Estate of Laban Wanyonyi Muchonji.
6. The Appellant herein has lodged an appeal against a beneficiary of the Estate of the deceased, who is currently not an administrator given that the appointment of the Appellant and the Respondent was revoked and a new grant was issued on 8.9.2024 to Titus Muchonji Wanyonyi. I need not belabour the fact that the Respondent herein lacks the capacity to be sued on behalf of the estate of the deceased. Section 82 of the Law of Succession Act outlines the powers of the personal representatives as follows:
i. To enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;
ii. To sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—
(i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and
(ii) no immovable property shall be sold before confirmation of the grant;
iii. To assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;
iv. To appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation: Provided that except so far as otherwise expressly provided by any will—
(i) no appropriation shall be made so as to affect adversely any specific legacy;
(ii) no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required.
7. In light of the fact that the Appeal herein is filed against one beneficiary and not the personal representative of Laban Wanyonyi Muchonji, the same is null and void ab initio and so are all attendant applications that are premised on the appeal herein.
8. In light of the above finding I need not delve into the question as to whether the Appellant has met the threshold for grant of orders of stay of the grant that is the subject of this appeal.
9. On the balance I do hereby dismiss the application herein with no orders as to costs.
Delivered, signed, and dated at Bungoma this 27th day of November, 2025.
MWANAISHA S. SHARIFF
JUDGE
In the presence of
Appellant
Respondent
'