[2024] KEHC 16353 (KLR)
The court found that there are two pending petitions regarding the estate of the deceased: one before the High Court and another before the Kadhi's Court. The court had previously addressed and dismissed the arguments of res judicata and sub judice in an earlier ruling, and saw no basis to revisit those findings....
Source-derived case information.
- Citation
- [2024] KEHC 16353 (KLR)
- Parties
- Petitioner: Khalid Swaleh Karama Hantoosh; Respondent: Mohamed Swaleh Karama Hantoosh
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause E012 of 2023
- Procedural Posture
- Succession Cause / Ruling on Application to Enlarge Time for Objection and Strike Out Proceedings
- Outcome
- Application allowed in part; time enlarged for filing objection proceedings; no order as to costs.
- Judges
- G Mutai
- Legal Topics
- Succession Proceedings, Objection to Grant, Res Judicata, Sub Judice, Enlargement of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Khalid Swaleh Karama Hantoosh
Petitioner
Mohamed Swaleh Karama Hantoosh
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Enlarge Time for Objection and Strike Out Proceedings
Legal Issues
- 1 Whether the court should enlarge time for the respondent/applicant to file objection proceedings out of time.
- 2 Whether the current succession proceedings are sub judice or res judicata in light of a parallel petition before the Kadhi's Court.
- 3 Whether the proceedings should be struck out as frivolous, fictitious, vexatious, scandalous, or an abuse of court process.
Ratio Decidendi
The court found that there are two pending petitions regarding the estate of the deceased: one before the High Court and another before the Kadhi's Court. The court had previously addressed and dismissed the arguments of res judicata and sub judice in an earlier ruling, and saw no basis to revisit those findings. The court noted that the directions leading to the filing of the present petition were issued without knowledge of the Kadhi's Court proceedings, as the petitioner had not disclosed their existence. In the interest of justice and to ensure all interested parties are heard, the court exercised its discretion to allow the application for enlargement of time, granting the...
Court Disposition
Application allowed in part; time enlarged for filing objection proceedings; no order as to costs.
Orders
- The Interested Party/Applicant is granted leave to file objection proceedings within 30 days of the date of the ruling.
- No orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
In re Estate of Swaleh Karama Hantoosh (Deceased) (Succession Cause E012 of 2023) [2024] KEHC 16353 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KEHC 16353 (KLR)
Republic of Kenya
In the High Court at Mombasa
Succession Cause E012 of 2023
G Mutai, J
December 6, 2024
IN THE MATTER OF THE ESTATE OF SWALEH KARAMA HANTOOSH (DECEASED)
Between
Khalid Swaleh Karama Hantoosh
Petitioner
and
Mohamed Swaleh Karama Hantoosh
Respondent
Ruling
1. The application before me is dated 26th June 2024. Vide the said application, the Respondent/Applicant seeks the following orders:-1. Spent;2. Spent;3. That this honourable court be pleased to enlarge the time for the Applicant to file the objection proceedings out of time and the annexed objection proceedings herein be admitted out of time upon payment of the requisite Court fees and be deemed served to the Respondent;4. That this honourable court be pleased to strike out these proceedings for being sub judice and res judicata, frivolous, fictitious, vexatious, scandalous and an abuse of the due process of the Court.; and5. That the costs of this application be borne by the Petitioner.
2. The Interested Party/Applicant avers that he and other family members were not involved in the process leading to the filing of the Petition for letters of administration intestate dated 24th October 2023. He stated that there exists another succession cause, to wit, Succession Cause No. 180 of 2019, before the Kadhi’s Court in respect of the estate of Swaleh Karama Hantoosh (deceased).
3. The application is opposed. Khalid Swaleh Karama swore an affidavit on 9th July 2024 in which he stated that the Respondent/Applicant did not explain why he wanted the time to be extended, as no reason was given for failing to file objection proceedings within time. In his view the application before the Court was made in bad faith to cause confusion. He, therefore, prayed that the application be dismissed.
4. The Respondent/Applicant filed a further Supporting Affidavit sworn on 29th July 2024, in which he reiterated the contents of his earlier affidavit.
5. The Respondent/Applicant filed Written Submissions dated 4th October 2024, in which he argued that the Petition was subjudice and/or res judicata and that the petition was admissible as the consent of all the beneficiaries was not obtained.
6. Petitioner/Respondent filed submissions dated 25th October, 2024, in which it was urged that the application be dismissed with costs.
7. I have considered the application, the response, and the parties' submissions.
8. It would appear to me that there are two pending Petitions regarding the estate of the deceased person, one before this Court and the other before the Kadhi.
9. I have previously dealt with the claim that this matter is res subjudice and or res judicata. In the ruling I delivered on 24th May 2024, I dismissed the same. I am unable to grant it at this point, either.
10. The Respondent avers that the Petition in this file was filed pursuant to the directions of this Court issued on 21st March 2023. Those directions were issued after the Court considered the petition for limited grant ad litem and were intended to ensure that the grant wasn’t abused. In issuing the grant, the Court was unaware of the Petition before the Kadhi’s Court as the Petitioner herein made no such disclosure.
11. In the interest of justice, I allow the application in terms of prayer 3 of the Notice of Motion dated 26th June 2024. The Interested Party is given leave to file the objection proceedings within 30 days of the date hereof.
12. I make no orders regarding costs as this is a succession dispute between close family members.Orders accordingly.
DATED AND SIGNED AT MOMBASA THIS 6TH DAY OF DECEMBER 2024. DELIVERED VIRTUALLY VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of:Mr Mangaro, for the Respondent/Applicant;No appearance for the Respondent; andArthur - Court Assistant.