[2013] KEHC 6400 (KLR)
The court found that the respondent failed to provide sufficient reasons for the prolonged delay in prosecuting the application for revocation of grant dated 16th August 2005. Despite opportunities to take directions and proceed with the matter, the respondent did not demonstrate commitment or diligence. The court...
Source-derived case information.
- Citation
- [2013] KEHC 6400 (KLR)
- Parties
- Applicant: Applicant Administrator; Respondent: Respondent
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2407 of 2005
- Procedural Posture
- Succession Cause / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- application allowed; revocation application dismissed for want of prosecution; costs to applicant
- Judges
- DN Musyoka
- Legal Topics
- Want of Prosecution, Revocation of Grant, Probate and Administration, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant Administrator
Applicant
Respondent
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the application for revocation dated 16th August 2005 should be dismissed for want of prosecution.
- 2 Whether the respondent has provided sufficient reasons for the delay in prosecuting the revocation application.
- 3 Whether the cautions registered against the title Ndumberi/Riabai/2041 should be removed.
Ratio Decidendi
The court found that the respondent failed to provide sufficient reasons for the prolonged delay in prosecuting the application for revocation of grant dated 16th August 2005. Despite opportunities to take directions and proceed with the matter, the respondent did not demonstrate commitment or diligence. The court emphasized that directions under Rule 44 of the Probate and Administration Rules were never taken, and the respondent's inaction since 2005 constituted want of prosecution. The court concluded that it would be unjust to allow the respondent to hold the applicant at ransom indefinitely and allowed the applicant's motion to dismiss the revocation application and for removal of...
Court Disposition
application allowed; revocation application dismissed for want of prosecution; costs to applicant
Orders
- The application dated 29th October 2012 is allowed in its entirety.
- The application for revocation dated 16th August 2005 is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
SUCCESSION CAUSE NO: 2407 OF 2005
IN THE MATTER OF THE ESTATE OF LUCY NUNGARI KABOGORO (DECEASED)
RULING
The applicant administrator has invoked the inherent powers of the court as saved under Rule 73 of the Probate and Administration Rules. He would like the court to dismiss the application for revocation dated 16th August 2005 for want of prosecution. He would also like cautions registered against the title Ndumberi/Riabai/2041 removed.
The summons dated 29th October 2012 was served on the respondent on 5th December 2012. The respondent has replied to it by his affidavit dated 17th December 2012. He concedes delay in the prosecution of his application dated 16th April 2005, and blames it on his previous lawyer who died before the summons for revocation could be heard. He appointed his second lawyer, now on record, in 2008, but there was delay in getting the lower court file availed. He pleads that the took all the necessary steps to dispose of the application.
The record shows that the summons of revocation dated 16th August 2005 was filed in court on 30th August 2005. On 24th September 2008 a date was fixed at the registry for the taking of directions on 5th November 2008. Directions were not taken on 5th November 2009 as the other side had not been served. The matter next came up on 4th February 2009, but again directions were not given as service had not been effected. On 2nd March 2009, directions could not be taken as counsel deputed by the respondent's advocates did not have clear instructions. Directions on the revocation application have never been taken as nothing concrete happened thereafter until the instant application dated 29th October 2012 was filed in court on 29th October 2012.
The respondent has not advanced any good reasons why the application dated 16th August 2005 has not been disposed of todate. More importantly directions on the mode of dispose of the said application have never been taken. The application dated 16th August 2005 was last in court on 2nd March 2009. A date was fixed on 9th May 2010 for hearing on 16th November 2010 but the hearing date was taken out on 20th October 2010 because the parties did not attend the call over. In any event it was premature to fix the matter for hearing before directions under Rule 44 of the Probate and Administration Rules had been taken. There is clear evidence of lack of commitment to dispose of the matter on the part of respondent. I am satisfied that there has been want of prosecution of the application dated 16th August 2005. The respondent cannot hold the applicant at ransom since 2005.
I find merit in the application dated 29th October 2012. I will allow it in its entirety. Costs shall be to the applicant.
DATED, SIGNED and DELIVERED AT NAIROBI THIS 27th DAY OF June 2013.
W.M. Musyoka
JUDGE