[2022] KEHC 656 (KLR)
The court found that the applicant's explanation for the delay in seeking confirmation of grant—namely, the death of his counsel—was plausible and beyond his control. The court exercised its inherent powers to set aside the ex-parte order dismissing the cause for want of prosecution, reinstated the succession cause,...
Source-derived case information.
- Citation
- [2022] KEHC 656 (KLR)
- Parties
- Applicant: Isaac Odhiambo Guto; Respondent: Harrison Guto Mbeche (Deceased)
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 46 of 2015
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Ex Parte Orders and Reinstate Cause
- Outcome
- Application allowed; ex-parte orders set aside; cause reinstated; applicant to file for confirmation of grant within seven days.
- Judges
- RPV Wendoh
- Legal Topics
- Revocation of Grant, Reinstatement of Cause, Confirmation of Grant, Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Odhiambo Guto
Applicant
Harrison Guto Mbeche (Deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Ex Parte Orders and Reinstate Cause
Legal Issues
- 1 Whether the ex-parte order dismissing the succession cause for want of prosecution should be set aside.
- 2 Whether the cause should be reinstated to allow the applicant to file for confirmation of grant.
Ratio Decidendi
The court found that the applicant's explanation for the delay in seeking confirmation of grant—namely, the death of his counsel—was plausible and beyond his control. The court exercised its inherent powers to set aside the ex-parte order dismissing the cause for want of prosecution, reinstated the succession cause, and directed the applicant to file for confirmation of grant within seven days. The court emphasized that justice would be best served by allowing the applicant to proceed, given the circumstances and the absence of any opposition.
Court Disposition
Application allowed; ex-parte orders set aside; cause reinstated; applicant to file for confirmation of grant within seven days.
Orders
- The orders issued on 8/5/2018 are set aside.
- This succession cause is reinstated as prayed.
Full Case Text
Judgment text and source record
18 paragraphs
In re Estate of Harrison Guto Mbeche (Deceased) (Succession Cause 46 of 2015) [2022] KEHC 656 (KLR) (23 June 2022) (Ruling)
Neutral citation: [2022] KEHC 656 (KLR)
Republic of Kenya
In the High Court at Migori
Succession Cause 46 of 2015
RPV Wendoh, J
June 23, 2022
IN THE MATTER OF THE ESTATE OF HARRISON GUTO MBECHE (DECEASED) AND IN THE MATTER OF APPLICATION OF LETTERS OF ADMINISTRATION BY ISAAC ODHIAMBO GUTO.....................PETITIONER
Ruling
1. This cause relates to the estate of Harrison Guto Mbeche (Deceased) who died intestate on 25/7/2014. This ruling is in respect to the petitioner’s application dated 15/3/2022.
2. The application was filed pursuant to Order 10 Rule 11 and Order 51 Rule 1 of theCivil Procedure Rules seeking the following orders: -1. Spent.2. That this court be pleased to vacate, vary and/or set aside the entire ex-parte order given in this matter and all its consequential effects, reinstate this matter and set it down for confirmation of grant.3. Costs of this application be in the cause.4. Any other relief.
3. The application is premised on the grounds on the face of it and the supporting affidavit of Isaac Odhiambo Guto, the petitioner. The petitioner’s case is that a grant of letters of administration in the estate of the deceased was issued to him on 17/3/2016; that after the lapse of six months after gazettement, he instructed his Counsel Tom Mboya Advocates to file for the confirmation of grant. Unfortunately, his Counsel passed on in the year 2019 without seeking confirmation of grant on his behalf.
4. Further to the foregoing, the petitioner stated that the aforementioned events were beyond his control and now he is ready to file for confirmation of grant to enable him to distribute the estate.
5. I have considered the application and the supporting affidavit of the petitioner. On 12/11/2015 this cause came before Mrima J. The parties were not present and the matter was stood over pending issuance of grant and further proceedings. On 8/5/2018, the cause was placed before the court. Again, both parties were not present and the court proceeded to dismiss the matter for want of prosecution and revoked the grant. Therefore, it is not in dispute that the cause was dismissed for want of prosecution after the parties were indolent for close to three years.
6. Section 76 (d) (i) of the Law of Succession Act gives the court powers to revoke or annul a grant for want of prosecution within one year from the date the grant was issued or such long period as the court may allow. The court can do so when moved or on its own motion.
7. The court does have inherent powers under Section 47 of the Law of Succession Actand Rule 73 of the Probate and Administration Rules to entertain applications and make such orders as may be necessary to meet the ends of justice. The explanation given by the petitioner of the failure to file an application in time is plausible. The petitioner has also annexed a draft application for summons for confirmation of grant.
8. Accordingly, I allow the application for reinstatement dated 15/3/2022 and issue the following orders: -1. The orders issued on 8/5/2018 be and are hereby set aside;2. This succession cause be and is hereby reinstated as prayed;3. That an application for Confirmation of Grant be filed forthwith within seven (7) days of this ruling in default the cause stands dismissed;4. Costs shall be in the cause.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 23RD DAY OF JUNE, 2022R. WENDOHJUDGERuling delivered in the presence ofMr. Mboya for the Petitioner.Evelyn Nyauke Court Assistant.