[2019] KEHC 6159 (KLR)
The court found that the order made on 24-5-2017 was made in error because it failed to recognize that the citor/applicant had already filed the succession cause in 2004. It was therefore improper to require the citor to file another succession cause if the citees failed to do so. The proper course was to allow the...
Source-derived case information.
- Citation
- [2019] KEHC 6159 (KLR)
- Parties
- Applicant: Reuben Burudi Satia; Respondent: Ayub Chemanga; Respondent: Edward Mahanga; Respondent: Mark Mmasi; Respondent: Jairus M. Wachiya; Respondent: David Muswahi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 556 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application to Review And/or Set Aside Previous Orders and for Leave to Proceed With Confirmation of Grant
- Outcome
- application for review allowed; previous orders reviewed and varied; applicant granted leave to proceed with succession cause and confirmation of grant application
- Judges
- CM Njagi
- Legal Topics
- Succession Procedure, Confirmation of Grant, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reuben Burudi Satia
Applicant
Ayub Chemanga
Respondent
Edward Mahanga
Respondent
Mark Mmasi
Respondent
Jairus M. Wachiya
Respondent
David Muswahi
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Review And/or Set Aside Previous Orders and for Leave to Proceed With Confirmation of Grant
Legal Issues
- 1 Whether the orders made on 24-5-2017 should be reviewed or set aside in light of the citor/applicant having already filed the succession cause in 2004.
- 2 Whether the citor/applicant should be allowed to proceed with the application for confirmation of grant dated 30/3/2012 after the citees/respondents failed to comply with the court's order.
Ratio Decidendi
The court found that the order made on 24-5-2017 was made in error because it failed to recognize that the citor/applicant had already filed the succession cause in 2004. It was therefore improper to require the citor to file another succession cause if the citees failed to do so. The proper course was to allow the citor/applicant to proceed with the existing succession cause and the pending application for confirmation of grant, given the citees/respondents' failure to comply with the court's order. The court accordingly reviewed and varied the previous order to grant the citor/applicant leave to proceed with the succession cause and to fix the application for confirmation of grant for...
Court Disposition
application for review allowed; previous orders reviewed and varied; applicant granted leave to proceed with succession cause and confirmation of grant application
Orders
- The orders made by Justice Sitati dated 24/5/17 are reviewed to provide that in case the citees/respondents failed to comply with the order, the citor/applicant do proceed with this succession cause.
- The citor/applicant is given leave to proceed with the succession cause and to fix for hearing the application for summons for confirmation of grant dated 30/3/2012.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 556 OF 2004
IN THE MATTER OF THE ESTATE OF LYDIA KHAMALISHI (DECEASED)
REUBEN BURUDI SATIA ................. CITOR/APPLICANT
VERSUS
AYUB CHEMANGA ................ 1ST CITEE/RESPONDENT
EDWARD MAHANGA ............2ND CITEE/RESPONDENT
MARK MMASI ....................... 3RD CITEE/RESPONDENT
JAIRUS M. WACHIYA........... 4TH CITEE/RESPONDENT
DAVID MUSWAHI...................5TH CITEE/RESPONDENT
RULING
1. The citor/applicant herein has filed an application dated 24/5/2017 seeking for orders that:-
(a) The orders made on 24-5-2017 in these proceedings be reviewed and/or set aside.
(b) The application dated 30-3-2012 for confirmation of grant herein be considered as presented.
(c) Any other further orders be made as the Honourable Court may deem just and expedient.
(d) Costs of the application be provided for.
2. The orders made by Justice Sitati on the 24/5/2017 were that:-
“The citees have fifteen (15) days from today to file and serve the succession papers, failing which the citor herein, Reuben Burudi Satia is granted leave to do so.”
3. The problem before the court is that when Justice Sitati made the order dated 24/5/2017 she forgot to note that the citor/applicant had already filed this Succession cause way back in the year 2004. He could thereby not be ordered to file another succession cause if the citees failed to file a succession cause as ordered. I think the proper order should have been that in case the citees failed to file the succession case as ordered, then the citor was thereby granted leave to proceed with this succession cause.
4. The citees did not comply with Justice Sitati’s orders dated 24/5/2017. The citor/applicant then should be allowed to proceed with this succession cause. By the time Justice Sitati made the order dated 24/5/2017 the citor/applicant had filed summons for confirmation of grant dated 30/3/2012. The citor/applicant should then proceed with his application for summons for confirmation of grant.
5. In the foregoing the orders made by Justice Sitati dated 24/5/17 are hereby reviewed to provide that incase the citees/respondents failed to comply with the order the citor/applicant do proceed with this succession cause. As the citees/respondents failed to comply with the order the citor/applicant is hereby given leave to proceed with the succession cause and to fix for hearing the application for summons for confirmation of grant dated 30/3/2012. The citor to serve the hearing date on the respondents.
Delivered, dated and signed in open court at Kakamega this 22nd day of May, 2019.
J. NJAGI
JUDGE
In the presence of:
No appearance for the Citor/applicant
Citor/applicant - absent
Citees/respondents - absent
Court Assistant - George