[2016] KEHC 700 (KLR)
The court found that the notice to show cause issued prior to the revocation of the grant was not specific, as it provided a range of dates rather than a particular date for action. This lack of specificity rendered the revocation of the grant procedurally improper. Consequently, the court exercised its discretion...
Source-derived case information.
- Citation
- [2016] KEHC 700 (KLR)
- Parties
- Applicant: David Musembi Muoki; Respondent: Estate of Mutile Muoki Mathyaka (Deceased)
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 584 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Dismissal and Reinstate Cause
- Outcome
- application allowed; succession cause reinstated
- Judges
- DO Ogembo
- Legal Topics
- Grant Revocation, Reinstatement of Cause, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Musembi Muoki
Applicant
Estate of Mutile Muoki Mathyaka (Deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Dismissal and Reinstate Cause
Legal Issues
- 1 Whether the order dismissing the succession cause for want of prosecution should be set aside.
- 2 Whether the succession cause should be reinstated for hearing and final disposal.
- 3 Whether the notice to show cause was sufficiently specific to justify revocation of the grant.
Ratio Decidendi
The court found that the notice to show cause issued prior to the revocation of the grant was not specific, as it provided a range of dates rather than a particular date for action. This lack of specificity rendered the revocation of the grant procedurally improper. Consequently, the court exercised its discretion to set aside the dismissal order and reinstate the succession cause, directing the petitioner to confirm the grant within ninety days. The decision was grounded on the need to ensure that procedural fairness is observed and that the estate is administered to its logical conclusion.
Court Disposition
application allowed; succession cause reinstated
Orders
- The order made on 21st July, 2015 dismissing the succession cause for want of prosecution is set aside.
- The succession cause is reinstated for hearing and final disposal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 584 OF 2011
IN THE MATTER OF THE ESTATE OF MUTILE MUOKI MATHYAKA – DECEASED
DAVID MUSEMBI MUOKI …………PETITIONER/APPLICANT
RULING OF THE COURT
1. The Notice of Motion application before the court is dated and filed herein on 17th May, 2016. The application seeks the following orders;
i. That this court be pleased to set aside the order made on 21st July, 2015 in Succession Cause No. 584 of 2011 dismissing the Petitioner’s/Applicant’s cause hearing for want of prosecution.
ii. That upon grant of prayer 1 herein above this court be pleased to reinstate the Petitioner’s/Applicant’s Succession Cause herein for hearing and final disposal.
iii. That costs of this application be in cause.
2. The applicant’s case as contained in the Supporting Affidavit sworn and filed on 17th May, 2016 is that he is the Petitioner and the son of the late Mutile Muoki Mathyakawho died on 25th July, 1987. After receiving a Notice from court for dismissal of the Succession Cause herein, he has realized that it is his duty to pursue the finalization of the Succession Cause herein until its end. The appelicant is now eager and anxious to have the Succession Cause herein finalized to its logical conclusion and therefore urges this court to allow him pursue the same.
3. I have looked at the file. The Grant herein was revoked on21st July, 2015. However, the Notice to show cause gave a date between6th July to 25th July, 2015. That was not specific and cannot found an action to revoke the Grant.
4. I herewith allow the application and reinstate the Grant. I also direct the Petitioner to have the Grant Confirmed within ninety (90) days from to date.
Orders accordingly.
DATED AND DELIVERED AT MACHAKOS THIS15THDAY OF NOVEMBER, 2016.
E. OGOLA
JUDGE
In the presence of;
Petitioner present in person
Court Assistant – Mr. Munyao