[2022] KEHC 15344 (KLR)

In re Estate of Joshua Ongaro Mirimo (Deceased) (Succession Cause 54 of 2010) [2022] KEHC 15344 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15344 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 54 of 2010

JR Karanja, J

November 15, 2022

Between

Vincent Ouma Khahubi

Objector

and

Humphrey Juma Ongaro

Petitioner

Ruling

1. This matter was effectively instituted in court way back in the year 2010, when the petitioner, Humphrey Juma Ongaro, applied for grant of letters of administration intestate respecting the estate of his father, the Late Joshua Ongaro Mirimo (deceased) comprising a parcel of land described as Samia/Budongo/267. Apparently, the petitioner was the eldest of the deceased’s four sons. Pursuant to the application, a grant of letters of administration intestate was issued to the petitioner on July 15, 2010. Thereafter, on the November 3, 2010 he took out the necessary summons for confirmation of the grant. However, an objection was raised by Vincent Ouma Khahubi (objector) and this was subsequently followed on the December 6, 2013 with an application for revocation of the grant, which was never prosecuted and remained pending as at the December 28, 2021, when the matter was mentioned for directions but neither the objector nor the petitioner appeared in court thereby prompting the dismissal of the application and indeed the entire cause for want of prosecution and closure of the cause file.

2. The present application dated May 15, 2022 was made by the objector seeking orders that:-(1)The summons for confirmation dated January 6, 2013 and dismissed on October 28, 2021 be reinstated.(2)After reinstatement, the summons for revocation be set for hearing on a priority date.(3)The costs of this application be borne by the respondent.The supporting grounds are set out in the notice of motion and fortified by the objector’s averments contained in his supporting affidavit dated March 15, 2022. The petitioner/respondent opposed the application on the basis of the grounds indicated in his replying affidavit dated May 20, 2022. It is noteworthy that despite dismissal of the entire matter by the court on the October 28, 2021, the petitioner still went ahead to file an application for confirmation of grant dated May 9, 2022.

3. Be that as it may, the instant application was canvassed by way of affidavit evidence and written submissions which were filed on behalf of the objector/applicant by Wasuna & Co Advocates and on behalf of the respondent/petitioner by Gabriel Fwaya Advocates.This court having duly considered the application on the basis of the supporting grounds and the rival submissions and with regard to prayer one (1) finds that the prayer is a misconception as the alleged summons for confirmation dated January 6, 2013 is non existent. Besides, the prayer contradicts prayer two (2) which refers to an undated summons for revocation. However, it is obvious from the supporting grounds and submissions that the applicant is seeking a reinstatement of his summons for revocation of grant dated December 6, 2013 and not January 6, 2013. He contends that he did not prosecute or delayed in prosecuting the application as he was awaiting the conclusion of ELC Case No 123 of 2014 in terms of a stay order made in this court on the August 8, 2015. This fact is not disputed by the respondent but he correctly clarified that the stay order was actually made on February 23, 2015 rather than May 8, 2015.

4. Indeed, on the February 23, 2015, the court ordered that the proceedings in this matter be stayed pending the hearing and determination of Busia ELC Case No 123 of 2014. However, parties were given the liberty to apply which meant that either party could move the court for any appropriate orders even before the conclusion of the case before the Environment and Land Court. None of them did move the court accordingly despite the fact that this case had been in court for an ordinate period of time and the determination of the ELC Case No 123 of 2014 was taking rather long. It is however understandable that the failure to act on the part of either party with a view to having this matter expeditiously disposed of was occasioned by the court’s stay order which was not brought to the attention of this court on October 28, 2021 when the parties had the opportunity to show cause why this matter should not be dismissed for want of prosecution but failed to appear in court thereby prompting the court to dismiss the matter in its entirety.

5. Now that ELC Case No 123 of 2014 was concluded in a judgment rendered on January 20, 2022, it would be fair and just for this court to set aside its dismissal order made on October 28, 2021 and reinstate for hearing and disposal the objector’s application for revocation of grant dated December 6, 2013. It is accordingly ordered.In sum, the instant application is allowed in terms of prayer two (2) of the notice of motion.The parties are hereby directed to file further or additional supporting or replying affidavits (if necessary) for hearing of the summons for revocation of grant dated December 6, 2013, by way of written submissions which ought to be filed on or before the scheduled hearing date as may be fixed today.Each party shall bear their own costs of the application.

JR KARANJAHJ U D G E[DATED AND DELIVERED THIS 15TH DAY OF NOVEMBER, 2022]