[2019] KEHC 1872 (KLR)
The court dismissed the application for review of the distribution of the estate dated 25th January 2014 because the applicant and his advocate failed to attend court to prosecute the application, despite clear directions that no adjournment would be allowed. The court found no basis to consider the merits of the...
Source-derived case information.
- Citation
- [2019] KEHC 1872 (KLR)
- Parties
- Applicant: Elijah Masinde Shamalla; Respondent: Elijah Kona Shamalla; Applicant: Dinah Khatioli Mukhwana; Applicant: Agnetta Obeeli Lumbasi; Applicant: Mary Ivayo Shamala
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 227 of 1995
- Procedural Posture
- Succession Cause / Ruling on Application for Review and Substitution of Beneficiaries
- Outcome
- application for review dismissed; application for substitution allowed by consent
- Judges
- DN Musyoka
- Legal Topics
- Succession, Grant Confirmation, Review of Distribution, Beneficiary Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Masinde Shamalla
Applicant
Elijah Kona Shamalla
Respondent
Dinah Khatioli Mukhwana
Applicant
Agnetta Obeeli Lumbasi
Applicant
Mary Ivayo Shamala
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Review and Substitution of Beneficiaries
Legal Issues
- 1 Whether the application for review of the distribution of the estate should be allowed.
- 2 Whether the substitution of deceased beneficiaries with their heirs should be permitted.
Ratio Decidendi
The court dismissed the application for review of the distribution of the estate dated 25th January 2014 because the applicant and his advocate failed to attend court to prosecute the application, despite clear directions that no adjournment would be allowed. The court found no basis to consider the merits of the application in the absence of the applicant. The application for substitution of beneficiaries dated 20th January 2016 was allowed by consent, as the parties agreed to the substitution of the deceased beneficiaries with their heirs. The court advised that any further issues raised by Elijah Kona Shamalla should be brought by formal application to ensure all parties have an...
Court Disposition
application for review dismissed; application for substitution allowed by consent
Orders
- The application dated 25th January 2014 is dismissed with costs to Elijah Kona Shamalla.
- The application dated 20th January 2016 for substitution of beneficiaries is allowed by consent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 227 OF 1995
IN THE MATTER OF THE ESTATE OF SHAMALLA MOMO (DECEASED)
RULING
1. The grant herein was confirmed on 26th September 2013, in a ruling that was delivered by Dulu J, on an application dated 27th April 2010. Thereafter, several applications were lodged herein. One application was dated 25th January 2014 and the other was dated 20th January 2016.
2. The application dated 25th January 2014 sought review of the distribution of the estate. The distribution envisaged in the application is not identified, in terms of when the orders were made, but I presume it is the orders that Dulu J made on 26th September 2013. The application was made at the behest of Elijah Masinde Shamalla. The application was responded to by Elijah Kona Shamalla, through his affidavit sworn on 24th May 2014. Directions were given on 12th May 2015, for disposal of the application by way of affidavit and oral evidence.
3. The application dated 20th January 2016 was at the instance of Dinah Khatioli Mukhwana, Agnetta Obeeli Lumbasi and Mary Ivayo Shamala, to substitute their parents who were beneficiaries and who had died.
4. The matters came up for hearing on several occasions and were adjourned. Eventually the application dated 20th January 2016 was allowed on 12th July 2019 by consent.
5. The application dated 25th January 2014 was, on 16th July 2019, fixed for hearing on 25th September 2019, in the presence of Elijah Kona Shamalla and Mr. Munyendo. It was also directed that no adjournment would be allowed on that day. Come 25th September 2019, only Elijah Kona Shamalla attended court. He addressed the court at length on several issues, none of which touched on the application. As what was up for hearing was the application dated 25th January 2014, and the applicant and his advocate did not attend court to argue it, I shall, in the circumstances, dismiss the said application with costs to Elijah Kona Shamalla.
6. On the various matters that Elijah Kona Shamalla addressed me on, I shall advise that he files a formal application so that the other parties get opportunity to respond to them. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 29TH DAY OF NOVEMBER, 2019
W. MUSYOKA
JUDGE