[2016] KEHC 7749 (KLR)
The court found that although the applicant delayed for about ten years in applying for confirmation of the grant, the estate had remained un-administered for a considerable period, and any further delay would only dissipate the estate property. The court was persuaded that, in the best interest of justice and the...
Source-derived case information.
- Citation
- [2016] KEHC 7749 (KLR)
- Parties
- Applicant: Patrick Muchangu Mathendu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 148 of 2005
- Procedural Posture
- Succession Cause / Application for Setting Aside Revocation of Grant and Reinstatement
- Outcome
- Application allowed. Revocation order set aside. Grant reinstated.
- Judges
- F Gikonyo
- Legal Topics
- Revocation of Grant, Confirmation of Grant, Service of Notice, Delay in Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Muchangu Mathendu
Applicant
Procedural Posture
Succession Cause / Application for Setting Aside Revocation of Grant and Reinstatement
Legal Issues
- 1 Whether the revocation of the grant for failure to apply for confirmation within one year should be set aside.
- 2 Whether the alleged lack of service of notice under Section 73 of the Law of Succession Act invalidates the revocation order.
- 3 Whether the long delay in seeking confirmation of grant can be excused in the interest of justice.
Ratio Decidendi
The court found that although the applicant delayed for about ten years in applying for confirmation of the grant, the estate had remained un-administered for a considerable period, and any further delay would only dissipate the estate property. The court was persuaded that, in the best interest of justice and the purpose of succession law, the revocation order should be set aside and the grant reinstated, subject to strict terms. The court also accepted the late application for confirmation as properly filed and directed that it be heard expeditiously to avoid further delay.
Court Disposition
Application allowed. Revocation order set aside. Grant reinstated.
Orders
- The order of revocation made on 16th July 2015 is set aside.
- The grant of representation of the estate of the deceased to Patrick Muchangu Mathendu is reinstated.
Full Case Text
Judgment text and source record
12 paragraphs
IN THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 148 OF 2005
IN THE MATTER OF THE ESTATE OF CHABARI NJRU KIRERU alias CHABARI NJERU - DECEASED
PATRICK MUCHANGU MATHENDU ……APPLICANT/PETITIONER
RULING
Reinstatement of grant
[1] Two inextricable orders have been sought in the application dated 24th February, 2016: set aside the order made on 16th July, 2015; and reinstate the grant that was revoked thereto. The record shows that a grant of representation of the estate of the deceased was made to the Petitioner on 16th November, 2005. The cause then went to slumber for about ten (10) years. This inaction prompted the court to issuea Notice under Section 73 and 76 (d) (1) of the Laws of Succession Act. I have seen a copy of the said Notice. Then the court (Githinji J) on 16th July 2015 revoked the grant herein under Section 76 (d) (1) of the Law of Succession Act because the administrator,being the personto whomthe grant had been made failed, after due notice and without reasonable cause to apply for confirmation of the said grant within one year from the date of thereof. Indeed, no steps had been taken to apply for confirmation at the time the grant herein was revoked. The judge was so satisfied and that fact cannot be doubted except I note that the advocate for the administrator Mr.Murango Mwenda has denied any service of the Noticeunder Section 73 of the Law of Succession Act. Is this a suitable case for setting aside the revocation order? This is the agendaI must discuss in the application dated 24th February, 2016.
[2] Other than allegation that Notice was not served, Murango Mwenda stated that he filed a summons for confirmation of the grant on 21st October, 2015. I have perused the court file and the said application isinthe court file. But, one thing that is boggling my mind is why it took the Petitioner about ten years to apply for confirmation. Without doubt, that was a considerable period oftime and the delay has not been explained with power and punch. That notwithstanding, is it still possible to do justice in this cause despite the long delay? There is some eagernessnow from the Petitioner to move this cause forward and have the administration of the estate underway; could be because of the adverse act of revoking the grant or for legitimate purpose. Nonetheless, it is there. Secondly, the estate has remained un-administered for a long time now and any further delay may only dissipate the estate property. I am aware that the law of succession does not exist for insidious purposesbut to ensure estate properties are preserved and administration of estate is done diligently and completely,That noble purpose of the law appeals to my sense of justice. And accordingly, and purely in the best interest of justice, I am persuaded to reconsider the decision of the court but on verystrict terms and I hereby set aside the order of revocation made on 16th July 2015. I reinstate the grant of representation of the estate of the deceased to Patrick Muchangu Mathendu. I will also treat the application for confirmation filed on 21st October, 2015 to have been properly filed and it shall be heard on a date I will give in order to avoid any further delay. It is so ordered.
Dated, Delivered and Signed in open court at Meru this 16th day of June, 2016.
F. GIKONYO
JUDGE