[2024] KEHC 8230 (KLR)
The court held that the summons for revocation of grant were fatally defective and bad in law from the outset, as they were filed and prosecuted against a deceased administrator without any substitution. The Objectors/Applicants, despite being represented by counsel and being aware of the administrator's death,...
Source-derived case information.
- Citation
- [2024] KEHC 8230 (KLR)
- Parties
- Applicant: Lawrence Odhiambo Opande; Applicant: Bon Ngeso Opande; Applicant: Sylvester Ochieng Otieno; Respondent: Nicholas Obunde Opande
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 126 of 1993
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- summons for revocation of grant struck out; costs awarded to respondent's widow
- Judges
- MS Shariff
- Legal Topics
- Revocation of Grant, Substitution of Administrator, Procedure in Succession, Locus Standii, Costs in Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Odhiambo Opande
Applicant
Bon Ngeso Opande
Applicant
Sylvester Ochieng Otieno
Applicant
Nicholas Obunde Opande
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the summons for revocation of grant can be sustained when filed against a deceased administrator.
- 2 Whether failure to substitute the deceased administrator renders the application fatally defective.
- 3 Whether the Objectors/Applicants provided a satisfactory explanation for the delay and procedural lapse.
Ratio Decidendi
The court held that the summons for revocation of grant were fatally defective and bad in law from the outset, as they were filed and prosecuted against a deceased administrator without any substitution. The Objectors/Applicants, despite being represented by counsel and being aware of the administrator's death, failed to take the necessary procedural step of substituting the deceased party. The court found the explanation for the delay unsatisfactory and emphasized that legal proceedings cannot be sustained against a deceased person. Consequently, the application was struck out, and the Objectors/Applicants were ordered to pay the Respondent's widow's travel expenses as costs.
Court Disposition
summons for revocation of grant struck out; costs awarded to respondent's widow
Orders
- The summons for revocation of grant dated 1.2.2022 are struck out as bad in law.
- The Objectors/Applicants' advocates on record shall personally pay Kshs.3,000 to Linda Achieng Obunde as travelling expenses.
Full Case Text
Judgment text and source record
27 paragraphs
In re Estate of Romanus Opande Kisaka (Deceased) (Succession Cause 126 of 1993) [2024] KEHC 8230 (KLR) (8 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8230 (KLR)
Republic of Kenya
In the High Court at Kisumu
Succession Cause 126 of 1993
MS Shariff, J
July 8, 2024
IN THE MATTER OF THE ESTATE OF ROMANUS OPANDE KISAKA
Between
Lawrence Odhiambo Opande
1st Applicant
Bon Ngeso Opande
2nd Applicant
Sylvester Ochieng Otieno
3rd Applicant
and
Nicholas Obunde Opande
Respondent
Ruling
1. Whereas the administrator herein is said to have died on 12. 7.2011, the Objectors/Applicants filed a summons for revocation of the grant on 1. 2.2022 with the full knowledge of the fact of death of the Respondent.
2. On 18. 1.2023 Counsel for the Objectors Ms. Nyabeki took directions for the hearing of the summons for revocation of grant by way of viva voce evidence on 15. 4.2024 when the same could not proceed due to the absence of the court as the Judge was on an emergency leave.
3. The summons were then rescheduled to 8/7/2024. It is surprising that the Objectors who are well represented by advocates have been moving this court suo motto without reference to the fact that the Respondent cited in their application is deceased.
4. An apology by Counsel for the Objectors made 13 years delay is not satisfactory explanation as to why the administrator was not substituted in the first instance when the summons for revocation of grant was filed.
5. In light of the above I do find that the summons for revocation of grant is bad in law ab initio for having been filed against a deceased person wherefore I do hereby strike out the summons for revocation of grant dated 1. 2.2022.
6. Given that the Objectors have caused the Respondent’s widow one Linda Achieng Obunde to attend court today, having served here with a hearing notice, I do condemn them to pay her travelling expenses of Kshs.3,000 which sum shall be paid by their advocates on record personally.
7. This file is marked as closed.
DATED, SIGNED AND DELIVERED THIS 8THDAY OF JULY, 2024. M. S. SHARIFFJUDGE