https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6983

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **MILIMANI LAW COURTS** **SUCCESSION CAUSE NO. 839 OF 2017** **IN THE MATTER OF THE ESTATE OF JOEL WAMBUGU GATAMAH** **HELLEN WANJIRU GATAMAH ……..……… OBJECTOR/APPLICANT** **VERSUS** **WILLIAM NJOROGE …………. 1ST ADMINISTRATOR/RESPONDENT** **DENNIS WATHIGO GATAMAH ………….. 2ND ADMINISTRATOR/RESPONDENT** **RULING** 1. The deceased, **Joel Wambugu Gatamah,** died on 8th April 2017 and a Grant of Letters of Administration was issued on 3rd October, 2017 to Denis Wathigo Gatamah, William Njoroge and Helen Wanjitu Gatamah. 2. Helen filed an application dated 20th March, 2018, seeking to revoke the Grant on the grounds that the Letters of Administration were obtained based on fraudulent information and misrepresentation, among other reasons stated in her application. She primarily argues that she did not sign the petition and alleges that her signature was forged. Additionally, she claims that William, the co-administrator, is a stranger to the estate. 3. When the matter came up for *viva voce* hearing on 3rd February, 2025, as per earlier directions taken by consent, there was no attendance on her part, and the application was dismissed for want of prosecution. 4. The matter now comes before the Court for the determination of an application dated 12th February, 2026, in which Helen seeks an order to set aside the order of dismissal made on 3rd February, 2025 and to reinstate the application for revocation of Grant dated 20th March, 2018. 5. The Applicant’s counsel admits that the failure to attend was an error on their part as they mis-diarized the hearing date. They state that they only became aware of the dismissal upon receiving service of the directions and a mention notice from the administrator’s counsel. 6. They assert that the failure was inadvertent and that they have always been keen to prosecute the matter. The Applicant states that she has a meritorious case and that it would be in the interests of justice to determine the dispute on its merits. 7. The Respondent opposed the application, arguing that the Applicant has been indolent and that reinstating the suit would prejudice him. **Analysis and determination** 1. The issue for determination is whether the Court should exercise its discretion to set aside the dismissal and reinstate the application. 2. The power to set aside a dismissal for want of prosecution is discretionary. 3. Under **Section 47** of the**Law of Succession Act**and **Rule 73** of the **Probate and Administration Rules**, this Court has wide inherent powers to make such orders as may be expedient to ensure that the ends of justice are met and to prevent abuse of the court process. 4. In ***CMC Holdings Ltd vs James Mumo Nzioka (2004) KLR 173,*** the Court stated as follows regarding mistakes in the context of applications to set aside ex parte orders: ***“The discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.”*** 1. In this case, the reason advanced for non-attendance is the failure by counsel to diarize the date. From the record, there is no evidence of wilful disregard of court proceedings by the applicant. The delay occasioned is not inordinate, and the Applicant moved the Court promptly upon learning of the dismissal. 2. Further, in this succession cause, it is in the interest of all parties that the issues in dispute be determined with finality on their merits rather than being dismissed on procedural technicalities. Any prejudice that may be suffered by the respondent can be compensated by way of costs. 3. Accordingly, I find merit in the application and exercise discretion in favour of the applicant. 4. Disposition; 5. ***The order dismissing the application for revocation of grant is hereby set aside, and the application is reinstated for an interpartes hearing.*** 6. ***The Applicant shall pay throw-away costs to the respondent assessed at Kshs. 20,000/- payable within 14 days of today.*** 7. ***The matter having been in court since 2017 shall be fixed for hearing on priority basis. The parties are directed to take all necessary steps to facilitate a timely resolution.*** 8. Orders accordingly. **DATED** and **DELIVERED** at **NAIROBI** through the Microsoft Teams Online Platform onthis **18TH** day of **MAY, 2026.** **……………………..** **C. KENDAGOR** **JUDGE** **In the presence of:** Court Assistant: Beryl Mr. Ombati, Advocate for Objector/Applicant No appearance for the Respondent