https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/206

In re Estate of Maina (Deceased) (Succession Cause 186 of 2018) [2026] KEMC 206 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEMC 206 (KLR) Republic of Kenya In the Nyeri Law Courts Succession Cause 186 of 2018 MM Gituma, SRM July 1, 2026 IN THE MATTER OF THE ESTATE OF MAGDALINA WANJIRU MAINA (DECEASED) In the matter of Simon Mwangi Maina Petitioner Ruling 1.By way of an application dated 8th April 2026, the Petitioner/Applicant seeks the following orders:a.That the Honourable Court be pleased to review and/or set aside the order made on 17th June 2019 revoking the grant issued to the Applicant on 18th May 2015 and dismissing the Petitioner’s cause for non-attendance and want of prosecution.b.That upon granting prayer a) above, this Honourable Court be pleased to reinstate the grant to enable the Petitioner prosecute this cause on merit.c.That the Summons for confirmation of grant attached hereto be deemed as properly filed upon payment of the requisite court filing fees.d.That this application be in the cause.The application is based on the grounds therein and those in the Supporting Affidavit of the Petitioner/Applicant sworn on 8th April 2026. 2.The Petitioner/Applicant states that grant of letters of administration intestate were issued to him on 18th May 2015 in Nyeri High Court Succession Cause No. 157 of 2014. Thereafter, the Applicant filed summons for confirmation of grant dated 16th January 2016. Before confirmation of the grant, the file was transferred from the High Court to the Magistrates’ Court for hearing and determination. Upon transfer, the summons for confirmation were set for hearing on 20th May 2019. However, the Applicant was not served with a notice. The matter was again set for confirmation on 17th June 2019. The Applicant failed to attend court and the grant was revoked. 3.The Petitioner/Applicant explains that he was acting in person and did not receive notices. Further, the matter stalled as one of the properties of the estate had been left out and he was following up. 4.The Petitioner/Applicant urges that he is ready to finalize the matter and prays that the application be allowed. The Determination 5.The only issue for determination is whether the suit should be reinstated. In the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] KEHC 6789 (KLR), Justice F. Gikonyo elaborated as follows with regard to reinstatement of a suit:“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Dancles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.” 6.In this case, the Applicant/Petitioner states that it is in the interest of justice to have the suit reinstated to allow him finalize the matter by distributing the estate. 7.I have considered the application. In my view, this being a succession suit, it would be in the interest of justice to have the suit re-instated. This would allow the Petitioner to finalize the proceedings by distributing the estate. Failure to reinstate the suit would lock out the Petitioner and the beneficiaries from the seat of justice. Upon reinstatement, it would then follow that the grant of letters of administration intestate should be re-issued as the same had been revoked. 8.Therefore, orders will be issued as follows:a.An order be and is hereby issued setting aside the order issued on 17th June 2019. The suit herein is hereby reinstated.b.An order be and is hereby issued for the re-issuance of the grant of letters administration intestate.c.The summons for confirmation of grant to be considered as properly on record upon payment of the requisite fees.d.There shall be no order as to costs. DATED, SIGNED, AND DELIVERED IN NYERI ON THIS 1ST DAY OF JULY, 2026.M. M. GITUMASENIOR RESIDENT MAGISTRATEIn the presence of:……………………………………Petitioner/Applicant……………………………………Court Assistant