Rosedalima Akwiri Ndong v Florence Achieng Okola & 1 other

application was brought under Rules 49 and 73 of the Probate and Administration Rules and anchored on the grounds therein as well as the supporting affidavit of Florence Achieng Okola. 5. The petitioners contended that it was expected that following the court’s orders of 14/11/2020, the survey implementing the same would be conducted in an open and transparent manner whilst giving them notice but instead was done with the intention of giving the petitioner the entirety of the estate leaving them with very little portion of the land. That they were never given notice of the survey being undertaken nor the results. 6. The application was opposed by a replying affidavit sworn on the 9/7/2025 by the objector, Rosedalima Akwiri Ndong. It was deposed that in an effort to satisfy the judgment of 14/11/2020, she engaged a surveyor as well as the petitioners who at the start of the process were co-operative but when they realized that hiving off the 8.05 Ha from the remainder of the deceased’s estate would leave them with a small portion of land, developed cold feet and attempted to frustrate the process. 7. That the survey revealed that she was entitled to a whole transfer of LR No. Kisumu/Koru/2317 measuring 6.8Ha, Kisumu/Koru/2130 measuring 0.4Ha and further necessitating a sub-division of 1.305Ha from Kisumu/Koru/2316 resulting in Plot No. Kisumu/Koru/2551. 8. That the petitioners refused to sign the resultant mutation and transfer forms forcing her to move court vide an application dated 2/3/2021 seeking to compel the Deputy Registrar to sign the said forms. That the said application and hearing notice were served upon the petitioners’ advocates as certified by the court on the 7/6/2021 with the application being heard and the Court allowing the same on 19/7/2021. 9. That consequently, having been heard on the manner of sub-division and transfer of land, the petitioners were estoppped from moving the court 4 years later seeking to undo her costly actions amounting to over Kshs. 500,000/-, of which Kshs. 300,000/- were professional fees for the surveyor. 10. In rejoinder, the petitioners relied on a further supporting affidavit sworn on the 16/7/2025 by the 1st petitioner in which she reiterated that she was not present when the survey was carried out and neither was she presented with the mutation form. That no evidence had been presented of the costs undertaken by the objector. 11. The application was disposed off by way of written submissions which I have duly considered. 12. This is an application under Rules 49 and 73 of the Probate and Administration Rules. Rule 49 serves as a "catch-all" for filing miscellaneous applications not explicitly provided for elsewhere, while Rule 73 preserves the court's inherent powers to make orders necessary for the ends of justice and preventing abuse. 13. In the instant case, the petitioners seek stay of execution of the order emanating from the judgment of 14/11/2020. For avoidance of doubt, the aforementioned judgment ordered as follows: “ 1) The Objector is entitled to 8.05Ha of the deceased’s estate. 2. The 8.505Ha shall be hived out of LR No. Kisumu/Koru/2316; LR No. No. Kisumu/Koru/2317; LR No. Kisumu/Koru/2129 ad LR No. Kisumu/ Koru/2130 registered in the name of Florence Achieng Okola, Nicholas Ouma Okola and Philip Odhiambo Okalo. 3. The 8.505Ha shall include the Objector’s mother’s matrimonial house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7444/eng@2026-05-29 2

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4. Petitioners shall bear the costs of these proceedings.” 14. The said judgment was not appealed against. It is therefore in full force. The same has been executed and perfected vide the orders of this Court of 19/7/2021. 15. The Law of Succession Act is primarily a standalone, self-sufficient statute. However, specific sections of the Civil Procedure Rules 2010 are applicable in succession proceedings by virtue of Rule 63 of the Probate and Administration Rules, which imports procedural rules to supplement any gaps in the Act. 16. Rule 63 provides that the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 together with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under the Probate and Administration Rules. 17. The above notwithstanding, a stay of execution without a pending or intended appeal is generally not granted. In any case, under Order 42, Rule 6 of the Civil Procedure Rules, stay orders are explicitly tied to safeguarding a right of appeal. Without a pending appeal, there is no legal basis to pause the implementation of a succession decree. Consequently, the prayer for stay of execution is without merit. 18. As regards the prayer for a fresh survey, the petitioners claim that they were not involved in the survey undertaken over the deceased’s estate as ordered by the Court. That they were subsequently not presented with the mutation or transfer forms from the said exercise as they ought to have been. The petitioners therefore urged this Court to exercise its discretion in granting them the orders sought. 19. In JMM v (2023) KECA 99 (KLR), the Court of Appeal, held, inter alia, that: “ Judicial discretion then is the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law. Every discretion be it judicial and judicious must be based on prudence, rationality, sagacity, astuteness, considerateness and reasonableness. There is no hard and fast rule as to the exercise of judicial discretion by a court because if it happens then, discretion will become fettered.” 20. I have perused the judgment of 14/10/2020, there is nowhere in the judgment where the court ordered the inclusion of the petitioners in the survey process. In arriving at her decision, Cherere J. stated that the same was reinforced by the fact that the petitioners and her other son had sold off the bulk of the deceased’s estate without making provisions for the objector who was also a daughter of the deceased. 21. Furthermore, the objector presented before this court evidence that following her undertaking of the survey and after the petitioners refused to sign the mutation and transfer forms, she approached came back to Court, which when it was satisfied that the petitioners had been notified of all the steps required to perfect the judgment of the Court, it made the order of 19/7/2021. That order is still in force and has not been set aside or reviewed. 22. The totality of the foregoing is that, the petitioners were afforded an opportunity to challenge the survey undertaken by the objector but failed to do so. The allegations by the petitioners that instead of taking only the sanctioned 8.505 Ha, the Objector is laying claim to the entire estate is unfounded. There is no evidence of such allegation be way of a survey report. They are the authors of their own predicament. 23. In any event, Cherere J. noted in the subject judgment that the bulk of the deceased’s estate had been sold off by the 1st petitioner and her sons and as such they bore the burden of receiving a reduced share of the net estate remaining as compared to the objector who had not received anything. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7444/eng@2026-05-29 3

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24. The preponderance of evidence points to the petitioners who are hell bent on denying the objector her share of the deceased’s estate as ordered by court. The present Motion is another attempt at preventing her from enjoying the fruits of her judgment and benefiting from the deceased’s estate as they have done. 25. In the circumstances, I find the Motion dated 10/3/2025 to be without merit and I dismiss the same with costs. It is hereby so ordered. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7444/eng@2026-05-29 4

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