https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10488

In re Estate of Lukale (Deceased) (Succession Cause 1267 of 1996) [2026] KEHC 10488 (KLR) (Family) (14 July 2026) (Ruling) Neutral citation: [2026] KEHC 10488 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Succession Cause 1267 of 1996 LW Gitari, J July 14, 2026 IN THE MATTER OF THE ESTATE OF ESTATE OF PHILOMENA KHALUYI LUKALE (DECEASED) In the matter of Elias Moard Mategwa & another Administrator Ruling 1.Before this Court is the Summons for Activation/File Re-opening dated 11th December, 2025 brought by the Applicant, Elias Moard Mategwa, one of the joint administrators of the estate. The Applicant seeks the following orders:i.That the court file in this succession cause be activated and re-opened.ii.That the application dated 6th September 2024 be reinstated for hearing and determination upon the re-opening of the file. 2.The application is premised on the grounds that:i.The application dated 6th September 2024 came up for hearing on 9th June 2025 but was dismissed for non-attendance after the Applicant was disconnected from the virtual court session due to network failure.ii.Prior to the dismissal, the Applicant had complied with the directions of the Court by filing the Chief's letter as directed by the Court.iii.The Applicant's failure to attend the virtual hearing was neither deliberate nor intentional but was occasioned by circumstances beyond his control.iv.It is in the interests of justice that the application dated 6th September 2024 be reinstated and determined on its merits. 3.The application is supported by the affidavit of Elias Moard Mategwa, sworn on 11th December 2025. The deponent avers that the application dated 6th September 2024 was scheduled for hearing on 9th June 2025 through the virtual platform. Although he had joined the online session, he experienced network disconnection which caused him to be removed from the platform, leading the Court to dismiss the application for non-attendance. 4.He further depones that he had complied with the directions previously issued by the Court, including filing the Chief's letter required in support of the application, and had every intention of prosecuting the application. 5.The Applicant therefore prays that the Court re-open the file, reinstate the application dated 6th September 2024, and fix it for hearing on the merits so that his application seeking revocation of the confirmed grant and issuance of a fresh grant may be determined. 6.The application is unopposed. No replying affidavit or grounds of opposition were filed by any of the Respondents or other beneficiaries. The application therefore proceeds as uncontroverted. Nevertheless, the Court is still under a duty to satisfy itself that the Applicant has established a proper basis for the orders sought. Issue for Determination 7.I have considered the application, the supporting affidavit and the record of the Court. The issue for determination is whether the Applicant has demonstrated sufficient cause to warrant the re-opening of the court file and the reinstatement of the application dated 6th September 2024. Analysis and Determination 8.The background of this matter is that it relates to the estate of Philomena Khaluyi Lukale(Deceased) who died on 29.9.1990. A grant of letters of Administration to her estate was on 29th October,1996 issued to Janet Munayi Lisanza and the applicant Elias Moard Mategwa. The grant was confirmed on 15th December 2000 and a certificate of confirmed Grant issued to the Administrators. 9.Subsequently, the applicant herein filed a summons for revocation of confirmed grant dated 6th September,2024 seeking revocation. The application came up for hearing on 9th June,2025 but the application was dismissed for non-attendance. Consequently, the applicant has filed this instant application seeking orders to re-open the file and the application dated 6th September,2024 be reinstated for hearing. 10.The Court has an unfettered discretion to set aside orders made in the absence of a party where sufficient cause has been shown. Such discretion, however, must be exercised judiciously and in a manner that advances the interests of justice. In Shah v Mbogo & Another [1967] EA 116, the Court held that the discretion to set aside an order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a person who has deliberately sought to obstruct or delay the course of justice. 11.The Applicant has explained that although he joined the virtual court session on 9th June 2025, he was disconnected due to network failure, resulting in the dismissal of his application for non-attendance. He has further demonstrated that prior to the hearing he had complied with the Court's directions by filing the Chief's letter as required. The explanation offered is plausible and has not been challenged by any party. 12.The Court is further guided by Article 159(2)(d) of the Constitution of Kenya, 2010, which requires courts to administer justice without undue regard to procedural technicalities. The Constitution also enjoins courts under Article 159(2)(a) and (b) to administer justice to all and to ensure that justice is not delayed. The overriding objective is that disputes should, where possible, be determined on their merits. In Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87, the Court of Appeal held that mistakes and inadvertent errors are bound to occur and that, unless there is fraud or intention to overreach, a litigant ought not to be denied the opportunity of having his case heard on the merits. 13.In the present case, the application is unopposed, and there is nothing to suggest that reinstating the application would occasion prejudice to any party. On the contrary, the interests of justice would be better served by allowing the Applicant an opportunity to prosecute his application on its merits. I am therefore satisfied that sufficient cause has been established to warrant the exercise of this Court's discretion in favour of the Applicant. Disposition 14.Accordingly, the summons dated 11th December,2025 is hereby allowed under the following terms; DATED at NAIROBI THIS 14TH DAY OF JULY, 2026……………………………L. GITARIJUDGE OF THE HIGH COURT OF KENYA, NAIROBI