Naftali Bwokendo Onyakundi & 8 others v Hon Attorney General

PRINCIPAL SECRETARY, MINISTRY OF INTERIOR AND NATIONAL ADMINISTRATION ..................................................................... 2ND RESPONDENT COUNTY COMMISSIONER, NYAMIRA COUNTY ............... 3RD RESPONDENT SUB-COUNTY COMMISSIONER, MANGA SUB-COUNTY . 4TH RESPONDENT ASSISTANT COUNTY COMMISSIONER, MANGA DIVISION .... 5TH RESPONDENT CHIEF, SENGERA LOCATION .................................................. 6TH RESPONDENT ASSISTANT CHIEF, MORAKO SUB-LOCATION ................... 7TH RESPONDENT LILIAN OSEBE NYAKWARA ...................................................... 8TH RESPONDENT CHIEF EXECUTIVE OFFICER MANAGING DIRECTOR, FAMILY BANK .............................................................................................. 9TH RESPONDENT CALEB KANGOGO .................................................................... 10TH RESPONDENT FRANCIS NDUKO MASANI .................................................... 11TH RESPONDENT RULING 1. This ruling concerns the Chamber Summons dated 20th February 2026 brought by the Applicants, namely Naftali Bwokendo Onyakundi, Melody Mokeira Bwokendo, Hyline Nyaboke Makacha, Derrick Ongera, Bravin Goodluck, Stella Kemunto Nyakundi, Adams Lucky Nyakundi, Rodgers Simba Ongera and Evans Nyambega Akuma, who describe themselves as persons interested in the estate of the late Vincent Nyakundi Ongera, and who seek to invoke the judicial review jurisdiction of this Court in respect of matters arising from the administration of the said estate. 2. The application is directed against a multiplicity of Respondents drawn both from public office and private capacity, including the Honourable Attorney General, the Principal Secretary in the Ministry of Interior and National Administration, the County Commissioner Nyamira County, the SubCounty Commissioner Manga Sub-County, the Assistant County Commissioner Manga Division, the Chief Sengera Location, the Assistant Chief Morako Sub-Location, Lilian Osebe Nyakwara, the Chief Executive Officer/Managing Director of Family Bank, Caleb Kangogo and Francis Nduko Masani, all of whom have been impleaded in these proceedings in connection with the impugned actions relating, directly or indirectly, to the estate of the deceased. 3. The Applicants seek the following orders: 1. Leave to commence judicial review proceedings for orders of certiorari, prohibition and mandamus; 2. That such leave do operate as a stay of any dealings with the estate of the deceased; 3. An order of certiorari to quash the letter of introduction issued by the 6th Respondent to the 8th Respondent; 4. An order of prohibition restraining the Respondents from dealing with or interfering with the estate of the deceased; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6674/eng@2026-04-30 2

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5. An order of mandamus to compel recognition and/or involvement of the Applicants in the administration of the estate; 6. Orders relating to the release, preservation or control of funds held by the 9th Respondent; 7. Orders affecting the administration and/or conduct of succession proceedings in respect of the estate; 8. Costs of the application. 4. The application is supported by the Supporting Affidavit sworn on 20th February 2026 by Naftali Bwokendo Onyakundi, the 1st Applicant, who describes himself as a person interested in the estate of the deceased and who depones both on his own behalf and on behalf of the other Applicants, setting out, at considerable length, the factual background of the dispute, the grievances complained of, and the legal basis upon which the intervention of this Court is sought. The deponent avers that the deceased, Vincent Nyakundi Ongera, died on 17th December 2024, leaving behind an estate comprising both movable and immovable assets of what he describes as substantial value, and in respect of which disputes have arisen concerning the manner in which the estate is being administered and controlled. 5. The deponent further sets out the legal framework relied upon, invoking, inter alia, Articles 22, 23, 47 and 165 of the Constitution, the provisions of Order 53 of the Civil Procedure Rules, and the Law of Succession Act, and contends that the actions complained of fall within the purview of judicial review on account of alleged illegality, irrationality and procedural impropriety. 6. He further makes reference to proceedings before the Chief Magistrate’s Court at Nyamira in respect of the estate of the deceased, expressing dissatisfaction with the process that culminated in the issuance of letters of administration to the 8th Respondent, and contends that the said process was irregular and undertaken without proper disclosure of all persons entitled to the estate; he at the same time raises concerns regarding funds held in an account with the 9th Respondent, which he asserts form part of the estate of the deceased and have been accessed, withdrawn or otherwise dealt with in a manner that amounts to intermeddling and is not sanctioned by law. 7. The affidavit further invokes principles relating to fair administrative action, public interest and the rule of law, and urges this Court to intervene so as to safeguard the estate and address what are described as irregular and unlawful actions. 8. The Supporting Affidavit identifies the deceased as “the son of surviving father Naftali Bwokendo Ongera,” thereby indicating that the 1st Applicant is the father of the deceased, while no express particulars are set out therein regarding the respective relationships of the 2nd to 9th Applicants to the deceased or the capacity in which they assert an interest in the estate. 10. The 1st to 7th Respondents opposed the application through a Replying Affidavit sworn on 31st March 2026 by Francis Nduko Masani, who identifies himself as the Chief of Sengera Location, Manga Division, Nyamira County, and as the 11th Respondent, and who depones in that dual capacity to matters within his knowledge arising from the discharge of his administrative functions. 11. Francis Nduko Masani states that he is conversant with the facts of the case and competent to swear the affidavit, and further sets out that he is appointed as an area Chief pursuant to section 15(2)(d) of the National Government Co-ordination Act, 2013, thereby placing his actions within a defined statutory framework. 12. He explains that following the death of Vincent Nyakundi Ongera on 17th December 2024, the 8th Respondent, Lilian Osebe Nyakwara, presented herself at his office on or about 10th February https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6674/eng@2026-04-30 3

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2025 seeking a letter of introduction for purposes of succession, and in support thereof produced documentation including an affidavit of marriage dated 20th January 2017, a death certificate dated 16th January 2025, her national identity card, and birth certificates relating to her children. 13. Upon consideration of the documentation presented and being satisfied as to its authenticity, he issued a letter of introduction to the 8th Respondent on the same date and retained a copy for official records, maintaining that this was done in the ordinary course of his administrative duties. 14. He further states that matters touching on the distribution and administration of the estate of the deceased can only properly be canvassed within a succession cause before a court of competent jurisdiction and expresses the position that the present proceedings are defective and amount to an abuse of the process of the Court. 15. The 9th Respondent opposed the application through Grounds of Opposition dated 17th March 2026 and a Replying Affidavit sworn on 30th March 2026 by Joan Gachomba, who describes herself as an officer acting on behalf of Family Bank and duly authorised to depone to the matters contained therein. 16. Joan Gachomba states that she has been advised by counsel, which advice she believes to be correct, that the Applicants lack locus standi, none having obtained a grant of representation in respect of the estate of the deceased, and that the application is therefore incompetent. She further explains that judicial review does not lie in respect of matters arising from succession proceedings and maintains that the Chamber Summons dated 20th February 2026 is fatally defective and does not meet the threshold for the grant of leave. She also sets out the position of the bank in relation to the account held in the name of the deceased, indicating that the account at Nyamira Branch reflected a negative balance as at 25th February 2026 and annexes statements of account in support thereof. 17. She further notes that the Applicants had previously instituted Miscellaneous Succession Cause. E005 of 2026 at Nyamira Law Courts, in which reliefs were sought relating to the estate, and maintains that the present proceedings seek to litigate matters that properly fall within that forum. 18. The Grounds of Opposition dated 17th March 2026 reiterate that judicial review is concerned with administrative action and does not apply to orders issued by a court of competent jurisdiction, and further assert that the application is frivolous and an abuse of the process of the Court. 19. The Applicants filed a Further Affidavit sworn on 07th April 2026 by Naftali Bwokendo Onyakundi and Evans Nyambega Akuma (1st and 9th Applicants respectively), in which they contest the responses filed, challenge the preliminary objections raised, and reiterate allegations of intermeddling with the estate and improper handling of funds. The said Applicants maintain that the objections raised do not meet the threshold of a proper preliminary objection as set out in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696 and assert that the Court has jurisdiction under the Constitution and the applicable statutory framework to entertain the present proceedings. 20. Having considered the pleadings, affidavits, submissions and the reliefs sought by the Applicants, the issues that arise for determination are as follows: 1. Whether the Applicants have met the threshold for the grant of leave to commence judicial review proceedings; 2. Whether such leave, if granted, should operate as a stay of any dealings with the estate of the deceased; 3. Whether the Applicants have established a basis for the grant of an order of certiorari to quash the letter of introduction issued by the 6th Respondent to the 8th Respondent; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6674/eng@2026-04-30 4

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4. Whether the Applicants have established a basis for the grant of an order of prohibition restraining the Respondents from dealing with or interfering with the estate of the deceased; 5. Whether the Applicants have established a basis for the grant of an order of mandamus to compel recognition and/or involvement of the Applicants in the administration of the estate; 6. Whether the Court can grant orders relating to the release, preservation or control of funds held by the 9th Respondent; 7. Whether the Court can grant orders affecting the administration and/or conduct of succession proceedings in respect of the estate; 8. What orders ought to be made as to costs. 21. The first issue is whether the Applicants have met the threshold for the grant of leave to commence judicial review proceedings. At this stage, the Court is required to determine whether the application discloses an arguable case and whether judicial review is the appropriate forum for the dispute. As explained in Omosa v Teachers Service Commission [2023] KEELRC 79 (KLR), the leave stage is not a formality but an evaluative stage at which the Court considers, without making definitive findings, whether the material placed before it raises a case that warrants further interrogation. 22. The same authority emphasises that judicial review is concerned with the process leading to a decision, and not with the merits of the decision itself, and that where an applicant invites the Court to determine contested matters of fact or substantive rights, judicial review is not the proper forum. 23. In the present case, the impugned act is the issuance of a letter of introduction by the 6th Respondent. The material before the Court shows that the letter was issued upon presentation of documentation by the 8th Respondent asserting spousal status. There is no evidence that the 6th Respondent acted outside his administrative mandate or in breach of any procedural requirement. 24. The Applicants’ wider grievances relate to participation in succession proceedings, alleged intermeddling with the estate, and control over estate assets. These issues raise substantive questions involving competing claims and disputed facts. Consistent with the reasoning in Omosa (supra), such matters do not fall within the remit of judicial review and are properly to be determined in the forum established by law for resolution of such disputes 25. The Applicants relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 which defines a preliminary objection as a pure point of law capable of disposing of a matter without recourse to evidence. 26. The present application, however, does not turn on a preliminary objection but on whether the Applicants have met the threshold for the grant of leave in judicial review proceedings. Moreover, the issues raised, particularly those concerning the estate, involve contested facts and substantive claims which fall outside the scope of a preliminary objection. In the circumstances, and for the reasons set out above, the reliance placed by the Applicants on Mukisa Biscuit (supra) does not advance the Applicants’ case. 27. Having regard to the foregoing analysis, the Court is not satisfied that the application discloses an arguable case within the scope of judicial review; consequently, leave to commence judicial review proceedings is declined. 28. The second issue is whether leave, if granted, should operate as a stay of dealings with the estate. The applicable principles are found in Order 53 Rule 1(4) of the Civil Procedure Rules and were explained https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6674/eng@2026-04-30 5

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in Sun Africa Hotels Limited & another v Kenya Revenue Authority & 2 others [2018] KEHC 3026 (KLR), where the Court held that the grant of a stay is discretionary and must be exercised judiciously. The purpose of such a stay is to preserve the status quo by suspending the impugned decision or process so that the substantive judicial review proceedings are not rendered nugatory. 29. The same decision makes it clear that, in determining whether to grant a stay, the Court must consider whether the impugned decision has been implemented, is in the course of implementation, or is yet to be implemented, and whether there exists a decision or process capable of being stayed. Where a decision has been fully implemented, there may be nothing left to stay, while where the decision is ongoing or its implementation is continuing, a stay may be appropriate. 30. In the present case, the impugned act is the issuance of a letter of introduction, which is facilitative in nature and does not, of itself, effect any transfer or disposition of the estate. It does not constitute a continuing administrative process capable of suspension. In those circumstances, there is no operative decision or process capable of being stayed. An order of stay would not preserve the substratum of the proceedings but would instead intrude into matters properly falling within succession proceedings. In any event, having found that leave is not merited, the prayer for stay cannot be sustained. 31. The third issue is whether certiorari can issue. The Applicants seek to quash the letter of introduction issued by the 6th Respondent. As explained in Meixner & another v Attorney General [2005] KECA 292 (KLR), judicial review is concerned with the decision-making process and not with the merits of the decision. A decision is amenable to certiorari where it is made without jurisdiction, in excess of jurisdiction, or in consequence of an error of law on the face of the record. 32. The issuance of the letter was an administrative act undertaken within the mandate of the 6th Respondent. However, the letter is facilitative in nature and does not determine rights or confer entitlement to the estate. It serves merely as a preliminary step in succession proceedings. 33. The Applicants have not demonstrated any illegality, procedural impropriety, or excess of jurisdiction in the issuance of the letter. Their grievance, properly understood, relates to the merits and consequences of succession and administration of the estate, which fall outside the purview of judicial review. In those circumstances, there is no basis upon which an order of certiorari can issue. 34. The fourth issue is whether prohibition can issue. The Applicants seek an order restraining the Respondents from dealing with the estate. As emphasized in Meixner (supra), judicial review remedies are confined to controlling the legality of decision-making processes and cannot be used to determine substantive disputes or usurp the role of other competent forums. 35. The relief sought concerns administration and control of estate property, involving substantive rights and competing claims best addressed within succession proceedings. Such matters are not amenable to judicial review. 36. The order of prohibition sought would therefore extend the jurisdiction of this Court beyond its proper limits in judicial review proceedings and cannot be granted. 37. The fifth issue is whether an order of mandamus can issue. An order of mandamus is a public law remedy which issues to compel the performance of a specific duty imposed by law upon a public body or officer, where that duty has been refused or neglected. It is not a remedy for the enforcement of private rights or for the determination of disputed entitlements. 38. The Applicants seek to compel their recognition and involvement in the administration of the estate but have not demonstrated the existence of any statutory or legal duty imposed upon the Respondents requiring them to recognise the Applicants as beneficiaries or to involve them in the administration of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6674/eng@2026-04-30 6

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the estate. The question of who is entitled to participate in the administration of a deceased’s estate, and in what capacity, is one that turns on proof of status, relationship, and entitlement under the applicable succession law. It is therefore a matter involving substantive rights and competing claims, which calls for evidentiary evaluation and determination. 39. Consequently, judicial review is not the proper forum for the resolution of such substantive disputes or contested questions of fact, but is limited to reviewing the legality of the decision-making process. To grant the order of mandamus sought would, in effect, require this Court to determine questions of entitlement and administration of the estate, which fall outside the scope of judicial review. In those circumstances, the order of mandamus sought is not available. 40. The sixth issue is whether the Court can grant orders relating to the release, preservation or control of funds held by the 9th Respondent. The Applicants seek, in substance, to affect the disposition and control of monies said to form part of the estate of the deceased. 41. Such relief necessarily invites the Court to determine questions of ownership, entitlement and beneficial interest in those funds. It would require the Court to interrogate the competing claims of the parties, ascertain who is lawfully entitled to the estate, and determine whether any dealings with the funds amount to intermeddling. These are matters that turn on evidence and involve contested facts, including the status of the parties, their relationship to the deceased, and their respective claims to the estate. 42. In that regard, the orders sought go beyond the supervisory remit of judicial review, which is confined to examining the legality of administrative action. Judicial review is not concerned with the determination of substantive rights or the resolution of disputes involving competing claims, but with the process by which a decision is made. 43. To grant the orders sought would, in effect, require the Court to assume the role of a succession court by determining issues relating to administration and distribution of estate assets, a function that lies outside the scope of judicial review proceedings. 44. In those circumstances, and bearing in mind the nature of the relief sought and the issues it raises, the Court finds that the claims relating to the release, preservation or control of funds are not amenable to judicial review. The relief sought under this head cannot therefore be granted. 45. The seventh issue is whether the Court can grant orders affecting the administration and conduct of succession proceedings. 46. The Applicants seek relief that would directly impact the management and progression of succession proceedings relating to the estate of the deceased. Such relief would necessarily require the Court to determine questions concerning administration of the estate, including the identification of beneficiaries, the propriety of ongoing proceedings, and the control of estate property. 47. Those matters fall within a distinct statutory and procedural framework governing succession, and entail the determination of substantive rights and competing claims. They are therefore not amenable to resolution within judicial review proceedings, which are confined to examining the legality of administrative action. 48. In the circumstances, the Court finds that the relief sought under this head cannot be granted. 49. In light of the determination on each issue, the Court makes the following orders: 1. The prayer for leave to commence judicial review proceedings is declined; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6674/eng@2026-04-30 7

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2. The prayer that leave do operate as a stay of dealings with the estate is declined; 3. The prayer for an order of certiorari is declined; 4. The prayer for an order of prohibition is declined; 5. The prayer for an order of mandamus is declined; 6. The prayer for orders relating to the release, preservation or control of funds held by the 9th Respondent is declined; 7. The prayer for orders affecting the administration and/or conduct of succession proceedings is declined; 8. The Chamber Summons dated 20th February 2026 is hereby dismissed; 9. Each party shall bear its own costs. 10. File closed DELIVERED AT NYAMIRA THIS 30TH DAY OF APRIL, 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Applicants - 1st Applicant present in person For 1st to 7th & 11th Respondents - Mr. Nderitu for the Office of the AG 8th Respondent - N/A For 9th Respondent - Mr. Munguti for Henia Anzala & Associates 10th Respondent - N/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6674/eng@2026-04-30 8

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