[2011] KEHC 3694 (KLR)
The court found that the summons for revocation dated 24th January 2006, filed by Hopewell Kirimana Munyua, had not been prosecuted and that Hopewell had died, as confirmed by counsel. In accordance with Rule 73 of the Probate and Administration Rules, the court held that it had the authority to deal with the abated...
Source-derived case information.
- Citation
- [2011] KEHC 3694 (KLR)
- Parties
- Applicant: Lydia Mwithimbu; Respondent: John Kobia M’Aritho; Applicant: Hopewell Kirimana Munyua
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 45 of 2000
- Procedural Posture
- Succession Cause / Ruling on Application to Strike Out Summons for Revocation After Applicant's Death
- Outcome
- Summons for revocation struck out; no order as to costs; outstanding applications to be fixed for hearing.
- Judges
- MM Kasango
- Legal Topics
- Abatement of Suit, Probate and Administration, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Mwithimbu
Applicant
John Kobia M’Aritho
Respondent
Hopewell Kirimana Munyua
Applicant
Procedural Posture
Succession Cause / Ruling on Application to Strike Out Summons for Revocation After Applicant's Death
Legal Issues
- 1 Whether the summons for revocation dated 24th January 2006 should be struck out following the death of the applicant, Hopewell Kirimana Munyua.
- 2 Whether the application dated 13th October 2010 seeking abatement of the summons for revocation should be granted.
Ratio Decidendi
The court found that the summons for revocation dated 24th January 2006, filed by Hopewell Kirimana Munyua, had not been prosecuted and that Hopewell had died, as confirmed by counsel. In accordance with Rule 73 of the Probate and Administration Rules, the court held that it had the authority to deal with the abated summons. The applicant's counsel conceded that the application could be dismissed due to the applicant's death. Consequently, the court struck out the summons for revocation and made no order as to costs. The court also noted the undue delay in the matter and directed that the remaining outstanding applications be fixed for hearing.
Court Disposition
Summons for revocation struck out; no order as to costs; outstanding applications to be fixed for hearing.
Orders
- The Summons dated 24th January 2006 is hereby struck out with no orders as to costs.
- There shall be no orders as to costs in respect of the summons dated 13th October 2010.
Full Case Text
Judgment text and source record
23 paragraphs
SUCCESSION
·Striking out an application after the death of the applicant.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 45 OF 2000
IN THE MATTER OF THE ESTATE OF DAUDI M’MUNYUA M’MWONGERA (DECEASED)
LYDIA MWITHIMBU...........................................................................................PETITIONER
VERSUS
JOHN KOBIA M’ARITHO....................................................................INTERESTED PARTY
RULING
The summons for revocation dated 24th January 2006 was filed in this cause by Hopewell Kirimana Munyua. It has not todate been prosecuted. By an application dated 13th October 2010, John Kobia M’Aritho seeks that the said summons for revocation be declared to have abated following the death of Hopewell. Although the learned counsel Mr. Rimita, who previously represented Hopewell filed grant of opposition to that application by Kobia, at the hearing of the application he conceded and said that the application can be dismissed in view of the death of Hopewell. It is on record of the proceedings of this case that the court on 10th March 2009 was informed by Mr. Rimita that Hopewell had died. By virtue of rule 73 of the Probate and Administration Rules, this court can deal with that summons of revocation in view of the death of Hopewell. Before however concluding this ruling, I need to comment and say that there has been undue delay in concluding this matter for reasons I cannot tell. There are four outstanding applications which need to be dealt with to enable the administration of this estate to be concluded. Those applications that I have noted in this file are:-
1. Chamber Summons dated 18th March 2004 filed by B.G. Kariuki Advocates.
2. Notice of Motion dated 27th August 2003 filed by Miss Mwangi E.G. & Co. Advocates.
3. Chamber Summons dated 13th August 2003 filed by Kimathi Kiara & Co. Advocates.
4. Summons dated 23rd April 2007 filed by Mwenda Mwarania Akwalu & Co. Advocates.
At the reading of this ruling, I will give a date for the hearing of all those applications. I now grant the following orders:-
1. The Summons dated 24th January 2006 is hereby struck out with no orders as to costs.
2. There shall be no orders as to costs in respect of the summons dated 13th October 2010.
3. I order that the following applications, Chamber Summons dated 18th March 2004, Notice of Motion dated 27th August 2003, Chamber Summons dated 13th August 2003 and Summons dated 23rd April 2007 be fixed for hearing at the reading of this ruling.
Dated, signed and delivered at Meru this 17th day of March 2011.
MARY KASANGO
JUDGE