[2019] KEHC 3568 (KLR)
The court found that although the applicant was responsible for misdiarising the hearing date, the gravity of succession matters and the need to determine disputes concerning the estate of a deceased person on their merits justified the exercise of judicial discretion. The court relied on Rule 73 of the Probate and...
Source-derived case information.
- Citation
- [2019] KEHC 3568 (KLR)
- Parties
- Applicant: Paul Hiro Loteng; Respondent: Andrew Muya Kaituko
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 74 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Reinstatement of Revocation of Grant Application
- Outcome
- Application for reinstatement of the revocation of grant application allowed, subject to payment of costs.
- Judges
- HK Chemitei
- Legal Topics
- Revocation of Grant, Probate and Administration, Reinstatement of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Hiro Loteng
Applicant
Andrew Muya Kaituko
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Reinstatement of Revocation of Grant Application
Legal Issues
- 1 Whether the applicant has provided sufficient reason for non-attendance leading to dismissal of the revocation of grant application.
- 2 Whether the court should exercise its discretion to reinstate the dismissed application concerning the estate of the deceased.
Ratio Decidendi
The court found that although the applicant was responsible for misdiarising the hearing date, the gravity of succession matters and the need to determine disputes concerning the estate of a deceased person on their merits justified the exercise of judicial discretion. The court relied on Rule 73 of the Probate and Administration Rules and Article 159 of the Constitution to set aside the dismissal order, allowing the applicant another opportunity to prosecute his objection proceedings, subject to payment of thrown away costs to the respondent.
Court Disposition
Application for reinstatement of the revocation of grant application allowed, subject to payment of costs.
Orders
- The orders issued on 23rd January, 2019 are set aside.
- The application for revocation of grant is reinstated.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 74 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE MORUNG'OLE MUYA KOLE
PAUL HIRO LOTENG..............................................APPLICANT
VERSES
ANDREW MUYA KAITUKO...............................RESPONDENT
RULING
1. The application by the Applicant filed on the 24th January, 2019 seeks to have the application for revocation of grant application dated 3rd October, 2018 be reinstated. He claims that when this matter came up for the hearing of the said application he misdiarised the same by indicating that it was due for hearing on 21st February, 2019 and not 21st January, 2019. As a result of the said mistake he did not attend court on the 23rd of January, 2019 when the court dismissed the same.
2. The respondent has responded vide the replying affidavit dated 22nd February, 2019 in which he has accused the applicant for being insincere. He said that he was present when the date was given in open court and he had not given any plausible reason.
3. The court has perused the said application and notes that it is true that the date was given in open court by consent. Indeed the Applicant has himself to blame if it is true that he mis diarised the date.
4. Nonetheless considering the gravity of the matter herein and that the same has to do with the estate of the deceased this court shall exercise its discretionary powers provide in law and in particular the provisions of Rule 73 of the Probate Rules under the Succession Act as well as the provision of Article 159 of the Constitution.
5. The Applicant is hereby granted another chance to ventilate his objection proceedings. The orders issued on 23rd January, 2019 are hereby set aside and the Applicant ordered to pay thrown away costs of Kshs.10,000 in the next 30 days from the date herein to the Respondent and in default the orders of reinstatement shall automatically lapse.
Dated signed and delivered at Kitale this 24th day of June 2019.
____________________
H. K. CHEMITEI
JUDGE
24/6/19
In The presence of:
Mr Teti holding brief for Kibe
Applicant present
Bororio for Munialo for the Applicant
Court Assistant – Kirong
Ruling read in open court.