[2016] KEHC 3617 (KLR)
The court found that the application was defective for failure to serve all beneficiaries of the estate. It is a fundamental rule of procedure that all interested parties must be notified and given an opportunity to be heard before any orders affecting their interests are made. The absence of such service creates...
Source-derived case information.
- Citation
- [2016] KEHC 3617 (KLR)
- Parties
- Applicant: Jennifer Gicuku Njagi; Administrator: Njoka M. Mbario; Respondent: Edward Nyaga Njagi; Applicant: Koria Njagi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 114 of 2015
- Procedural Posture
- Succession Cause / Interlocutory Application (ruling on Service and Variation of Consent Order)
- Outcome
- Application defective for want of service; applicant directed to serve all beneficiaries before hearing.
- Legal Topics
- Succession Proceedings, Service of Process, Variation of Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jennifer Gicuku Njagi
Applicant
Njoka M. Mbario
Administrator
Edward Nyaga Njagi
Respondent
Koria Njagi
Applicant
Procedural Posture
Succession Cause / Interlocutory Application (ruling on Service and Variation of Consent Order)
Legal Issues
- 1 Whether the applicant is entitled to restraining orders against eviction from the suit land.
- 2 Whether the consent order dated 15th June 2015 should be varied or set aside.
- 3 Whether failure to serve all beneficiaries renders the application defective.
Ratio Decidendi
The court found that the application was defective for failure to serve all beneficiaries of the estate. It is a fundamental rule of procedure that all interested parties must be notified and given an opportunity to be heard before any orders affecting their interests are made. The absence of such service creates grounds for setting aside any orders or judgments obtained. Accordingly, the court declined to grant the substantive orders sought and directed the applicant to serve all beneficiaries and interested parties before the application could be heard on its merits.
Court Disposition
Application defective for want of service; applicant directed to serve all beneficiaries before hearing.
Orders
- Applicant to serve all beneficiaries and interested parties with the application.
- Application to be set for hearing after service is effected.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 114 OF 2015
IN THE MATTER OF THE ESTATE OF NJAGI MAGUTA (DECEASED
JENNIFER GICUKU NJAGI.........................APPLICANT/1st RESPONDENT
VERSUS
NJOKA M. MBARIO...........................................................ADMINISTRATOR
EDWARD NYAGA NJAGI......….......................................2nd RESPONDENT
AND
KORIA NJAGI.....................................................BENEFICIARY/APPLICANT
RULING
1. The applicant filed this application under certificate of urgency seeking restraining orders from being evicted from the suit land reference No. Kyeni/Mufu/7391. She also sought variation or vacation of a consent order dated 15th June 2015 that was adopted as an order of this court.
2. The applicant has annexed a supporting affidavit in support of his application. According to him, he is a son of the deceased and the respondents are his siblings. He has also deponed that the second respondent filed a succession cause at Runyenjes Magisterial court being succession cause No. 69 of 2008 and was issued with a certificate of confirmation of grant. He has further deponed that all the beneficiaries were taken into account in the said succession cause.
3. Furthermore, he has also deponed that the first respondent filed summons for revocation of the grant and he obtained an order appointing himself as the administrator. It is also his further affidavit evidence that none of the beneficiaries including the applicant were aware of the existence of the revocation proceedings, which revocation was done by consent. The beneficiaries were not consulted. Finally, the applicant has deponed that the estate had already been distributed and each beneficiary was given his/her share. It is for these reasons that the applicant seeks that the consent order be varied or set aside.
4. It is clear that in this application, all the beneficiaries have not been served with notice of the application. According to the magisterial judgement in succession cause No.69 of 2008, there were nine beneficiaries including the applicant.
5. This application is defective in form for failing to serve all the beneficiaries. It is a cardinal rule that every interested party in a matter should be served to enable him/her to respond. This will avoid creating a ground for setting aside of any order or judgement obtained in the absence of the beneficiaries who were not served.
6. In the circumstances, the applicant is hereby directed to serve all the beneficiaries and other interested parties and thereafter set the application for hearing.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 16th day of June 2016
In the presence of Ms Muthoni for the applicant and in the absence of both respondents.
Court clerk NJue.
J.M. BWONWONGA
JUDGE
16. 06. 16