[2025] KEHC 2847 (KLR)
The court found that the protestor failed to comply with clear, written directions to file and serve the affidavit of protest within the stipulated period. The protest was filed out of time, and the protestor's explanation for the delay was not persuasive. However, in the interest of justice and to avoid condemning...
Source-derived case information.
- Citation
- [2025] KEHC 2847 (KLR)
- Parties
- Applicant: Pauline K Koky; Applicant: Juliah H Migoye; Applicant: Jeniffer J Wasianga; Applicant: Abigael O Anyango; Respondent: Roy S Akala; Respondent: Samuel S Oketch; Respondent: Jeremiah J Obiero; Respondent: Felix J Aganjo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Family Miscellaneous Application E070 of 2024
- Procedural Posture
- Family Miscellaneous Application / Ruling on Directions for Hearing of Protest and Confirmation of Grant
- Outcome
- Protest to be prosecuted by way of written submissions within strict timelines; failure to comply will result in the protest being deemed unprosecuted.
- Judges
- A Mabeya
- Legal Topics
- Succession Proceedings, Confirmation of Grant, Affidavit of Protest, Case Management, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline K Koky
Applicant
Juliah H Migoye
Applicant
Jeniffer J Wasianga
Applicant
Abigael O Anyango
Applicant
Roy S Akala
Respondent
Samuel S Oketch
Respondent
Jeremiah J Obiero
Respondent
Felix J Aganjo
Respondent
Procedural Posture
Family Miscellaneous Application / Ruling on Directions for Hearing of Protest and Confirmation of Grant
Legal Issues
- 1 Whether the affidavit of protest filed out of time should be allowed to be prosecuted.
- 2 Whether the application dated 13th December, 2012 remains relevant given the current position of the objectors.
- 3 Whether non-compliance with court directions on timelines warrants striking out the protest.
Ratio Decidendi
The court found that the protestor failed to comply with clear, written directions to file and serve the affidavit of protest within the stipulated period. The protest was filed out of time, and the protestor's explanation for the delay was not persuasive. However, in the interest of justice and to avoid condemning the protestor unheard, the court exercised discretion to allow the protest to be prosecuted by way of written submissions, with strict timelines. The court further held that the earlier objection had been overtaken by events as the objectors now supported confirmation, rendering the pending application of 13th December, 2012 irrelevant. The court emphasized the importance of...
Court Disposition
Protest to be prosecuted by way of written submissions within strict timelines; failure to comply will result in the protest being deemed unprosecuted.
Orders
- The protestor shall file and serve written submissions within 14 days; in default, the protest will be deemed unprosecuted.
- Other parties to file and serve submissions within 14 days of 25th March, 2025.
Full Case Text
Judgment text and source record
33 paragraphs
In re Estate of Amos Acklays (Deceased) (Family Miscellaneous Application E070 of 2024) [2025] KEHC 2847 (KLR) (11 March 2025) (Ruling)
Neutral citation: [2025] KEHC 2847 (KLR)
Republic of Kenya
In the High Court at Kisumu
Family Miscellaneous Application E070 of 2024
A Mabeya, J
March 11, 2025
IN THE MATTER OF THE ESTATE OF AMOS ACKLAYS (DECEASED)
Between
Pauline K Koky
1st Applicant
Juliah H Migoye
2nd Applicant
Jeniffer J Wasianga
3rd Applicant
Abigael O Anyango
4th Applicant
and
Roy S Akala
1st Respondent
Samuel S Oketch
2nd Respondent
Jeremiah J Obiero
3rd Respondent
Felix J Aganjo
4th Respondent
Ruling
1. I have considered the representations of consents. I have considered especially the submission by Mr. Ogada that he needs to have the affidavit of protest dated 6th March, 2025 heard. He has also referred to Court to a pending application by Mr. Ken Omollo’s client dated 13th December, 2012.
2. Firstly, the application dated 13th December, 2012 has never been a subject of any hearing. The fact that the grant was issued on 23rd October, 2012, that objection had been overtaken. In any event, for reason that the objectors are now in support of the confirmation, they are deemed to have abandoned the objection.
3. Secondly, Mr. Ogada’s submission that he thought he had 14 days to file the affidavit of protest does not hold. The directions of 24th February, 2025 were in writing. The affidavit was supposed to be filed and served within 7 days and be responded to within a similar period.
4. Thirdly, this is a 2012 matter. Aburili J had given the protestor 14 days to file and serve the Protest on 28th November, 2024. He failed to comply. On 24th February, 2025, I thought of giving the protestor the last chance of being heard. Indeed, I gave a self-executing order so as to ensure the Protestor does not drag the matter any further. He decided to file the protest out of time; on 6th March, 2025 instead of 3rd March, 2025.
5. I have seen the Protest. Rather than condemn the protestor without being heard, I give the following direction: -a.Let the Protest be prosecuted by way of submissions in writing.b.The protestor to file and serve submissions within 14 days. In default the Protest will be deemed to have been unprosecuted.c.The other parties do file and serve submissions within 14 days of 25th March, 2025. d.Ruling on the protest on 9th May, 2025. It is so ordered.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF MARCH, 2025. A. MABEYA, FCI ArbJUDGE