[2020] KEHC 8026 (KLR)
The court found that the objectors had provided a reasonable explanation for their absence at the hearing, namely illness and prior communication regarding counsel's unavailability. The court determined that the interests of justice would best be served by allowing the application and permitting the matter to be...
Source-derived case information.
- Citation
- [2020] KEHC 8026 (KLR)
- Parties
- Applicant: Daniel Matuu Kithome; Applicant: David Kilonzo Kithome; Respondent: Mumbua Kithome; Respondent: Mutisya Kithome
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1844 of 1998
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Dismissal of Revocation Application
- Outcome
- application allowed
- Judges
- A Ali-Aroni
- Legal Topics
- Succession, Revocation of Grant, Probate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Matuu Kithome
Applicant
David Kilonzo Kithome
Applicant
Mumbua Kithome
Respondent
Mutisya Kithome
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Dismissal of Revocation Application
Legal Issues
- 1 Whether the order dismissing the application for revocation of grant should be set aside.
- 2 Whether the absence of the objectors on the hearing date was justified.
Ratio Decidendi
The court found that the objectors had provided a reasonable explanation for their absence at the hearing, namely illness and prior communication regarding counsel's unavailability. The court determined that the interests of justice would best be served by allowing the application and permitting the matter to be heard on its merits, rather than dismissing it on a technicality. The court exercised its discretion under the Civil Procedure Act and Probate and Administration Rules to set aside the dismissal and reinstate the application for revocation of grant.
Court Disposition
application allowed
Orders
- The application dated 21st November 2019 is allowed.
- The application dated 17th May 2017 to be fixed for hearing forthwith.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
(FAMILY DIVISION)
SUCCESSION CAUSE NO 1844 OF 1998
IN THE MATTER OF THE ESTATE OF KITHOME MUTYAUVYU (DECEASED)
DANIEL MATUU KITHOME
DAVID KILONZO KITHOME.....ADMINISTRATORS
VERSUS
MUMBUA KITHOME
MUTISYA KITHOME...............................OBJECTORS
R U L I N G
1. The application subject of this ruling is dated 21st November, 2019 brought by the Objectors pursuant to Section 3Aand 63(e) of the Civil Procedure ActandRule 73 of the Probateand Administration Rules.
2. The application seeks to have the order dismissing the application for revocation of grant dated 17th May 2017 set aside, on grounds that the Objectors have at all times been ready to prosecute the objection and were absent on the 3rd of December 2018 for the reason that the 1st Objector was unwell and the Administrators’ counsel had communicated to the Objectors’ counsel that he would not be available.
3. The application was objected to by the Administrators and the Interested Party on grounds of inordinate delay, the document in support of the application being suspicious and the fact that the Applicants are not acknowledged heirs.
4. Having considered the application, the affidavit in support of the Objectors, the replying affidavit and the matter in its entirety I am convinced that the ends of justice will be met by allowing the application so that the mater may be heard on its merits.
The Application is therefore allowed.
5. The application dated 17th May 2017 be fixed for hearing forthwith.
6. Costs in the cause.
Dated and Delivered in Nairobi on this20TH day of FEBRUARY, 2020.
ALI-ARONI
JUDGE