https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10316

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO. 276 OF 1997** **IN THE MATTER OF THE ESTATE OF JOHN WANYIRI KUNYUGA (DECEASED)** **WILLIAM GAKUO …………………………………………PETITIONER** **RULING** 1. Before this Court is the Notice of Motion dated **18th September 2025** by which the Applicant **WILLIAM GAKUO** seeks the following orders:- **“1. THAT the Honourable Court be pleased to reinstate the suit for it to be heard and determined on merit.** **2. THAT the costs of the application be provided for.”** 2. The application was premised upon **Article 159 of the constitution of Kenya 2010, Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act** and all other enabling provisions of the law and was supported by the affidavit of even date sworn by **ANGELA MUTINDI NTHENGE** an Advocate of the High Court of Kenya. 3. The Respondents opposed the application through a Replying Affidavit dated **17th November 2025** sworn by the 6th Respondent/citee **AGNES MUTHONI WANYIRI**. **BACKGROUND** 4. This succession cause relates to the estate of the late **JOHN WANYIRI KUNYUGA** (hereinafter ‘the Deceased’) who died intestate on **15th August 1991**. A copy of the Death Certificate Serial No. **234540** was filed in Court on **29th October 1997**. 5. Following the demise of the Deceased his widow **CALUMELLA** **WANGECI WANYIRI** filed a Petition for letters of Administration Intestate dated **29th October 1997**. No further action was taken in the matter. No Grant in respect of the estate was ever issued and/or confirmed. 6. On **13th June 2017** following issuance of notices to the parties the Court dismissed the suit. Now almost **twenty (20) years** later the applicant has filed this application seeking reinstatement of the suit. **ANALYSIS AND DETERMINATION** 7. I have considered the application before court, the reply filed thereto as well as the written submissions filed by both parties. The only issue for determination is whether the application for reinstatement of the suit has merit. 8. **Order 12 Rule 7** of the **Civil Procedure Rules 2010** grants courts the power of reinstatement of suits which power is discretionary. 9. The factors which a court ought to take into account in considering whether or not to reinstate a suit were set out in the case of **IVITA** **-VS- KYUMBU [1984] KLR** where the Court stated as follows;- **“The tests is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant, so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance** **of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of** **prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”** 10. This is a cause which was instituted in the year **1997**. No further action was taken and the suit was dismissed **twenty (20) years** later in **June 2017**. Notwithstanding that dismissal it was not until **September 2025** a full **twenty seven (27) years** after the suit had first been instituted that the applicant is now seeking to have the suit reinstated. By any account the delay has been both prolonged and inordinate. The applicant has not tendered any or sufficient reasons to explain that delay. 11. It is noteworthy that the only asset forming the estate of the Deceased being the property known as **LR NO TETU/KARAIHU/87** is no longer registered in the name of the Deceased. A copy of the Green Card indicates that on **22nd December 1997** the said property was transferred to the widow **Calumera Wangeci Wanyiri** (see Annexture **AM 1’**) the Replying Affidavit dated **17th November** **2025**). 12. The Respondents aver that the widow later sub-divided the land and the resultant plots have been transferred to third parties. Copies of the Title Deeds appear as Annexture **AM’2’** to the Replying Affidavit. Therefore not only has the Grant already been confirmed but third party rights arising therefrom have already crystallized. 13. It is quite clear that it would serve no purpose to reinstate the suit as the subject matter i.e the Deceased’s property no longer exists in its original form. This application has come too late in the day. 14. Based on the foregoing I do hereby dismiss the Notice of Motion dated **18th September 2025**. Costs will be met by the Applicant. **Dated in Nyeri this 10th day of July 2026.** **…………………………** **MAUREEN A. ODERO** **JUDGE**