REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION APPEAL NO. E007 OF 2024
WALTER CHRISTOPHER SUDI..................APPELLANT/RESPONDENT
VERSUS
MOSES WAMALWA MUKHAMARI…1ST RESPONDENT/APPLICANT
CHRISTOPHER MUKWA................ 2ND RESPONDENT/RESPONDENT
AND
THOMAS NGARE JUMA........................1 ST APPLICANT/ RESPONDENT
ELIZABETH WALUKHU........................2 ND APPLICANT/ RESPONDENT
CLEOPHAS SIMIYU...............................3 RD APPLICANT/ RESPONDENT
RULING
1. This matter is coming up for directions. The 1 st Respondent/Applicant, Moses Wamalwa Mukhamari , moved the Court by way of a Notice of Motion dated 19th January 2026 wherein he seeks the following orders;
a) That the consent order adopted by this Honourable Court on 17th December 2025 be reviewed and set aside;
b) That the ruling issued in Webuye Succession Cause No. 3 of 2019 be reinstated;
c) That the Applicant be granted leave to file a response, including grounds of opposition, to the application dated 21st August 2025 so as to challenge the same;
d) That there be a stay of implementation of the consent order issued on 19th December 2025;
e) That the respondent/applicant be granted leave to file the grounds of opposition to the appeal;
f) That the costs of the application be provided for.
2. The application is supported by the grounds on the face of it and the affidavit of the Applicant Moses Wamalwa Mukhamari . His main ground of contention is that he was not served with the application that led to the consent order dated 19 th December 2025 entered into between the Appellant and the 2 nd Respondent and Thomas Ngare, Elizabeth Walukhu and Cleophas Simiyu also marked as the 1 st , 2 nd and 3 rd Applicant/Respondents respectively.
3. That in this regard, the proceedings that led to the entering into the impugned consent and its subsequent adoption by the Hon Deputy Registrar were conducted without his knowledge, and that his right to be heard was therefore violated.
4. The Respondents filed Grounds of Opposition dated 26 th February 2026 and A Replying Affidavit dated 3rd April 2026 as well as submissions, whereupon the Applicant subsequently filed a Supplementary Affidavit dated 4 th March 2026.
5. The Applicant protests that the Respondents filed a Supplementary Affidavit without the leave of the court and that the same should therefore be struck out as it offends the provisions of Order 53 Rule 14 of the Civil Procedure Rules.
6. However, from my perusal of the pleadings, save for the submissions filed on behalf of the Appellant, every other document by the Appellant and the rest of the Respondents is filed within the Rules. If anything, it is in fact the Applicant’s Supplementary Affidavit which has been filed without leave the leave of the court which if the court were to strictly adhere to procedure as it seeks that it does, then it is the one that ought to be struck out. In the interest of justice however, the court will deem it as properly filed.
7. The Applicant also protested the appearance for the Appellant. My perusal of the record of the court shows that a Notice of Change of Advocates on behalf of this Appellant dated 26 th January 2026 was filed by the firm of Wanyonyi Wanyama LLP.
8. The Applicant also disputes the authority of Thomas Ngare Juma to act on behalf of Elizabeth Walukhu and Cleophas Simiyu and further challenges his claim that he has authority represent the church. From my perusal of the pleadings however, it is clear that this is a substantive issue that can only be determined in the main cause after all the parties have been heard. For now, it suffices that the said Thomas Ngare has availed the necessary Authority to Act.
9. The above said, and all the preliminary issues having now been resolved by these directions, the court now hereby directs that the Application dated 19 th January 2026 shall be canvassed by way of written submissions. The Submissions filed on behalf of the Appellant and Respondents are premature and have been filed without the leave of the court. The same are therefore expunged from the record.
10. The Applicant herein is to file and serve his submissions within 14 days from today’s date. The Respondents are to file and serve theirs within 14 days of service. The matter shall be mentioned on 27 th July 2026 to confirm compliance and fix a date for Ruling.
Read Dated and Signed at BUNGOMA on 4 th June 2026
E. OMINDE
JUDGE
4 | Page BUNGOMA HCFA NUMBER E007 OF 2024
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION APPEAL NO. E007 OF 2024
WALTER CHRISTOPHER SUDI..................APPELLANT/RESPONDENT
VERSUS
MOSES WAMALWA MUKHAMARI…1ST RESPONDENT/APPLICANT
CHRISTOPHER MUKWA................ 2ND RESPONDENT/RESPONDENT
AND
THOMAS NGARE JUMA........................1 ST APPLICANT/ RESPONDENT
ELIZABETH WALUKHU........................2 ND APPLICANT/ RESPONDENT
CLEOPHAS SIMIYU...............................3 RD APPLICANT/ RESPONDENT
RULING
1. This matter is coming up for directions. The 1 st Respondent/Applicant, Moses Wamalwa Mukhamari , moved the Court by way of a Notice of Motion dated 19th January 2026 wherein he seeks the following orders;
a) That the consent order adopted by this Honourable Court on 17th December 2025 be reviewed and set aside;
b) That the ruling issued in Webuye Succession Cause No. 3 of 2019 be reinstated;
c) That the Applicant be granted leave to file a response, including grounds of opposition, to the application dated 21st August 2025 so as to challenge the same;
d) That there be a stay of implementation of the consent order issued on 19th December 2025;
e) That the respondent/applicant be granted leave to file the grounds of opposition to the appeal;
f) That the costs of the application be provided for.
2. The application is supported by the grounds on the face of it and the affidavit of the Applicant Moses Wamalwa Mukhamari . His main ground of contention is that he was not served with the application that led to the consent order dated 19 th December 2025 entered into between the Appellant and the 2 nd Respondent and Thomas Ngare, Elizabeth Walukhu and Cleophas Simiyu also marked as the 1 st , 2 nd and 3 rd Applicant/Respondents respectively.
3. That in this regard, the proceedings that led to the entering into the impugned consent and its subsequent adoption by the Hon Deputy Registrar were conducted without his knowledge, and that his right to be heard was therefore violated.
4. The Respondents filed Grounds of Opposition dated 26 th February 2026 and A Replying Affidavit dated 3rd April 2026 as well as submissions, whereupon the Applicant subsequently filed a Supplementary Affidavit dated 4 th March 2026.
5. The Applicant protests that the Respondents filed a Supplementary Affidavit without the leave of the court and that the same should therefore be struck out as it offends the provisions of Order 53 Rule 14 of the Civil Procedure Rules.
6. However, from my perusal of the pleadings, save for the submissions filed on behalf of the Appellant, every other document by the Appellant and the rest of the Respondents is filed within the Rules. If anything, it is in fact the Applicant’s Supplementary Affidavit which has been filed without leave the leave of the court which if the court were to strictly adhere to procedure as it seeks that it does, then it is the one that ought to be struck out. In the interest of justice however, the court will deem it as properly filed.
7. The Applicant also protested the appearance for the Appellant. My perusal of the record of the court shows that a Notice of Change of Advocates on behalf of this Appellant dated 26 th January 2026 was filed by the firm of Wanyonyi Wanyama LLP.
8. The Applicant also disputes the authority of Thomas Ngare Juma to act on behalf of Elizabeth Walukhu and Cleophas Simiyu and further challenges his claim that he has authority represent the church. From my perusal of the pleadings however, it is clear that this is a substantive issue that can only be determined in the main cause after all the parties have been heard. For now, it suffices that the said Thomas Ngare has availed the necessary Authority to Act.
9. The above said, and all the preliminary issues having now been resolved by these directions, the court now hereby directs that the Application dated 19 th January 2026 shall be canvassed by way of written submissions. The Submissions filed on behalf of the Appellant and Respondents are premature and have been filed without the leave of the court. The same are therefore expunged from the record.
10. The Applicant herein is to file and serve his submissions within 14 days from today’s date. The Respondents are to file and serve theirs within 14 days of service. The matter shall be mentioned on 27 th July 2026 to confirm compliance and fix a date for Ruling.
Read Dated and Signed at BUNGOMA on 4 th June 2026
E. OMINDE
JUDGE
4 | Page BUNGOMA HCFA NUMBER E007 OF 2024