[2017] KEHC 9166 (KLR)
The court found that the applicant's failure to prosecute the succession cause and confirm the grant was due to her reliance on her deceased advocate, and as a lay person, she could not have known that further steps were required. The court exercised its discretion in the interest of justice to set aside the...
Source-derived case information.
- Citation
- [2017] KEHC 9166 (KLR)
- Parties
- Applicant: Leonida Lyoshi Owegi; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 606 of 1992
- Procedural Posture
- Succession Cause / Ruling on Application to Reinstate Revoked Grant of Probate
- Outcome
- Application allowed conditionally.
- Legal Topics
- Probate and Administration, Revocation of Grant, Reinstatement of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonida Lyoshi Owegi
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Reinstate Revoked Grant of Probate
Legal Issues
- 1 Whether the court should reinstate a grant of probate with written Will that was revoked for want of prosecution.
- 2 Whether the applicant's explanation for the delay, attributing it to her deceased advocate, is sufficient to warrant setting aside the revocation order.
Ratio Decidendi
The court found that the applicant's failure to prosecute the succession cause and confirm the grant was due to her reliance on her deceased advocate, and as a lay person, she could not have known that further steps were required. The court exercised its discretion in the interest of justice to set aside the revocation order and reinstate the grant, subject to the condition that the applicant files an application for confirmation within 30 days, failing which the grant would remain revoked.
Court Disposition
Application allowed conditionally.
Orders
- The order revoking the grant of probate with written Will is set aside.
- The executrix is to file an application for confirmation of grant within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
SUCCESSION CAUSE NO. 606 OF 1992
IN THE MATTER OF THE ESTATE OF JOSEPH ODONGO OWEGI (DECEASED)
RULING
1. A grant of probate with written Will was issued on 4/8/1992 to the executrix herein Leonida Lyoshi Owegi. However, no action was taken to have the grant confirmed until 25/6/2015 when the said grant was revoked for want of prosecution since time had lapsed without any action being taken. Later the executrix who was all along under the wrong impression that her advocate the late Simami had obtained the certificate of confirmation of the grant, discovered that the same had been revoked.
2. She therefore pleaded with the court through a notice of motion dated 13/6/2017 but filed in court on 22/6/2017 to reinstate the annulled and or revoked grant by setting aside its orders of 25/6/2017. I have considered application herein filed under Section 1A and 3A of the Civil Procedure Act, Order 51 rule 1 and Order 12 rule 7 of the Civil Procedure Rules 2010 Cap 21 Laws of Kenya.
3. The applicant blames her counsel who unfortunately is dead for not taking action as required in law. According to her, the matter was finalized after getting the grant. As a lay person, she would not have known that there was another step remaining after obtaining a grant of probate with written Will. In the interest of justice I will allow the application in terms of prayer one on condition that the executrix do file an application for confirmation within 30 days from the date of this ruling in default, the grant shall remain revoked.
Order accordingly.
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2017.
J.N. ONYIEGO (JUDGE)