[2019] KEHC 5009 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

SUCCESSION CAUSE NO. 233 OF 2015

IN THE MATTER OF THE ESTATE OF MASILA MWANIKI (DECEASED)

BONIFACE TITO MASILA...................................................................APPLICANT

VERSUS

MWANIKI MASILA..........................................................................RESPONDENT

EMERITUS KASEE MUSYA..............................................INTERESTED PARTY

R U L I N G

1. Boniface Tito Masilaapproached this Court by way of Notice of Motion dated 6th December, 2016filed herein on the 7th December, 2016seeking an order setting aside and/or reviewing the Court’s order made on the 26th July, 2016dismissing his Application and to reinstate the Application dated the 20th March, 2012.

2. The Application is premised on grounds that the Applicant’s Application was scheduled for Ruling on 26th July, 2016. On that date the Applicant’s Counsel requested Mr. Francis Kalilito hold their brief. In the Ruling the Court made orders thus:

(i) In the interest of justice Application dated 20th March, 2012should be heard on merits and

(ii) Status quo be maintained pending fixing of a hearing date for the Application dated 20th March, 2012within 14 days.

(iii) In default, Application stands dismissed.

(iv) No orders as to costs.

3. That Mr. Kalilireported that the Application was to be fixed for hearing within 30 days in default the Application was to stand dismissed instead of within 14 days. Based on the information they invited the Respondent to attend the Court’s registry on 12th August, 2016to fix a hearing date. On the 27th September, 2016when the Application was scheduled for hearing the Court requested the Applicant to peruse the file. The Court had ruled that the Application stood dismissed. That failure to fix the Application for hearing was not intentional but due to misinformation. That the Court’s discretion in dismissing suits should be exercised cautiously.

4. The interested party filed an affidavit in reply where he deposed that the Ruling of the Court was clear and unambiguous. That the Court found that the Application dated 26th May, 2014had no merit but nonetheless exercised its discretion in ordering for the status quo to be maintained provided that the Application dated 20th March, 2012was fixed for hearing within 14 days which was never done. He dismissed the instant Application as an afterthought. He pointed out the inordinate delay exhibited by the Applicant and called for dismissal of the Application.

5. Following directions given, only the Applicant filed submissions. It was urged that the error or mistake emanated from the Advocate who held brief for Counsel representing the Applicant therefore it should not be visited upon an innocent litigant. In this regard the case of Philip Keipto Chemowolo & Another vs. Augustina Kubende (1986) eKLRwas cited where the Court held that:

“I think a distinguished equity Judge has said:

‘Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on the merits.’ I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”

6. He called upon the Court to exercise its discretion judiciously by allowing the Applicant to prosecute the Application to logical conclusion. One of the provisions of the law upon which the Application is premised is Order 45 Rules (1)(2)and (3)of the Civil Procedure Rules.This is one of the Rules of that are applicable under the Law of Succession jurisdiction by virtue of Rule 63of the Probate and Administration Rules.

7. In this regard, this Court can only be moved to review its order dated 26th July, 2016dismissing the Applicant’s Application dated 20th March, 2012,if a new and important matter/evidence has come up or there is a mistake or error apparent on the face of the record or for any other sufficient reason.

8. The argument raised by the Applicant was committed by the Advocate who was holding brief. This cannot be viewed to be an error on record, may be it could fall within the ambit of “any other sufficient reason.”

9. When a Court exercises its discretion, it ordinarily would be to avoid inter aliaan injustice or excusable mistake or error (see Shah vs. Mbogo and Another (1967) EA 116).

10. The argument raised is that the Advocate who was holding brief did not relay the correct information. However, there is no affidavit from the stated Advocate to clarify what he actually heard which means the allegation may not be true. What is apparent is the fact that the mistake or error in issue is attributed to the person representing the Applicant.

11. Looking at the nature of the case, it is a Succession Matter where it is alleged that the grant was obtained following concealment of some information where some alleged beneficiaries have been denied what may belong to them.

12. It would be in the interest of justice to have such issues ventilated.

13. Due to the nature of the matter, I will allow the Application. The order dismissing the Application dated 20th March, 2012made on the 26th July, 2016be and is hereby set aside. In the result, the Application dated 20th March, 2012is reinstated and shall be fixed for hearing within 7 days from today. In default the stated Application shall stand dismissed.

14. The Applicant is condemned to pay costs to the Respondent.

15. It is so ordered.

Dated, Signed and Delivered at Kitui this 4th day of July, 2019.

L. N. MUTENDE

JUDGE