[2010] KEHC 52 (KLR)
The court found that there was no evidence that the summons for revocation or annulment of grant dated 4th October 2007 was served upon the petitioner or other beneficiaries. The record only showed activity in respect of a different application for stay of execution, and the objector and her advocate did not...
Source-derived case information.
- Citation
- [2010] KEHC 52 (KLR)
- Parties
- Applicant: Eliud Muriithi Mwangi; Respondent: Serah Njeri Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 574 of 2007
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation or Annulment of Grant
- Outcome
- Ex parte proceedings and directions set aside; objector directed to serve summons for revocation or annulment of grant upon all beneficiaries.
- Legal Topics
- Revocation of Grant, Service of Process, Non Disclosure, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Muriithi Mwangi
Applicant
Serah Njeri Mwangi
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the summons for revocation or annulment of grant was properly served upon the petitioner.
- 2 Whether the proceedings for revocation or annulment of grant could proceed ex parte in the absence of evidence of service.
- 3 Whether the objector and her advocate failed to disclose the lack of service to the court.
Ratio Decidendi
The court found that there was no evidence that the summons for revocation or annulment of grant dated 4th October 2007 was served upon the petitioner or other beneficiaries. The record only showed activity in respect of a different application for stay of execution, and the objector and her advocate did not disclose the lack of service to the court. As a result, the proceedings for revocation or annulment of grant were conducted ex parte without proper notice to the affected parties. The court held that this was a fundamental procedural flaw and set aside the ex parte proceedings and directions, directing that proper service be effected before the matter could proceed.
Court Disposition
Ex parte proceedings and directions set aside; objector directed to serve summons for revocation or annulment of grant upon all beneficiaries.
Orders
- The order of directions given on 16th July 2010 is set aside.
- The ex parte proceedings taken on 1st October 2010 are set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO.574 OF 2007
IN THE MATTER OF ESTATE OFMWANGI NJOGU………..……………………………….DECEASED
AND
ELIUD MURIITHI MWANGI ……………..............................................................……………PETITIONER
VERSUS
SERAH NJERI MWANGI ……………….............................................................……..………OBJECTOR
RULING
A grant of letters of administration intestate in respect of the estate of Mwangi Njogu, deceased was made to Eliud Muriithi Mwangi (Petitioner) on 21st November 2006 and confirmed on 18th May 2007 by the Principal Magistrate’s court, Murang’a. Serah Njeri Mwangi (objector) took out the summons for revocation or annulment of grant dated 1st October 2007 in which she applied for the grant issued to the Petitioner to be revoked and or annulled on the ground:
“That the grant was obtained fraudulently and by the making of a false statement and or concealment of facts material to the case.”
The objector filed an affidavit to support the summons.
The Petitioner did not file any response to the summons for revocation and or annulment of grant.
I have carefully perused the record and I am unable to find any evidence that the application was served upon the Petitioner. What was served upon the petitioner was the summons dated 26th November 2007 in which the objector had applied for an order for stay of execution of the certificate of the confirmed grant. It would appear the aforesaid application was dismissed by the Honourable Mr. Justice Makhandia on 11th May 2009 for want of attendance on the part of the objector/applicant. When this matter came up for direction before me on 20th May 2010, Mr. Kirubi learned advocate for the Objector successfully urged this court to direct that the dispute be determined by affidavit evidence and by written submissions. It was incumbent upon the learned advocate to show this court that the summons for revocation and or annulment of grant had been served. I am not satisfied that the same was served and in any case there is no evidence that the objector applied for the initial directions on who to serve the application. The record shows that the file was only active in respect of the summons dated 26th November 2007. Having come to the conclusion that the summons for revocation and or annulment of grant dated 4th October 2007 was not served and that the Objector and her legal advisor did not disclose that fact to this court, I am of the view that the cause proceeded for hearing exparte. I hereby set aside the order of directions given on 16th July 2010 and the exparte proceedings taken on 1st October 2010. I direct the Objector to serve the summons for revocation and or annulment of grant dated 4th October 2007 upon all the beneficiaries named in the certificate of confirmation of grant dated 18th May 2007.
Dated and delivered this 25th day of November 2010.
J.K. SERGON
JUDGE
In open court in the presence of Mr. Mutiso holding brief Kirubi for Applicant Kingori holding brief Macharia.