[2009] KEHC 1638 (KLR)
The court accepted the advocate for the applicant's explanation for non-attendance, finding that the absence was due to unforeseen circumstances, though not fully disclosed. The court exercised its discretion under Rule 73 of the Probate and Administration Rules to reinstate the dismissed application for revocation...
Source-derived case information.
- Citation
- [2009] KEHC 1638 (KLR)
- Parties
- Petitioner: Ezekiel Kiptarus Mutai; Respondent: Tapkile Chesang Cheruiyot (deceased); Applicant: Objector/Applicant (unnamed)
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 222 of 2006
- Procedural Posture
- Succession Cause / Ruling on Application to Reinstate Dismissed Application for Revocation of Grant
- Outcome
- Application to reinstate dismissed application allowed. Costs awarded to petitioner/respondent against applicant's advocate personally.
- Legal Topics
- Probate and Administration, Revocation of Grant, Reinstatement of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ezekiel Kiptarus Mutai
Petitioner
Tapkile Chesang Cheruiyot (deceased)
Respondent
Objector/Applicant (unnamed)
Applicant
Procedural Posture
Succession Cause / Ruling on Application to Reinstate Dismissed Application for Revocation of Grant
Legal Issues
- 1 Whether the application to revoke grant dismissed for non-attendance should be reinstated.
- 2 Whether the advocate's explanation for non-attendance constitutes sufficient cause for reinstatement.
- 3 Whether costs should be awarded and to whom.
Ratio Decidendi
The court accepted the advocate for the applicant's explanation for non-attendance, finding that the absence was due to unforeseen circumstances, though not fully disclosed. The court exercised its discretion under Rule 73 of the Probate and Administration Rules to reinstate the dismissed application for revocation of grant. The court further ordered that costs of the application be paid to the petitioner/respondent by the applicant's advocate personally, assessed at Kshs. 2,000, as a throwaway cost. The court also noted irregularities in the manner hearing dates were taken ex parte and directed the Deputy Registrar to monitor the process more carefully.
Court Disposition
Application to reinstate dismissed application allowed. Costs awarded to petitioner/respondent against applicant's advocate personally.
Orders
- The application to reinstate the dismissed application is allowed.
- Costs of Kshs. 2,000 to be paid personally by the advocate for the applicant to the petitioner/respondent.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Succession Cause 222 of 2006
IN THE MATTER OF THE ESTATE OF
TAPKILE CHESANG CHERUIYOT ……....………….. DECEASED
AND
EZEKIEL KIPTARUS MUTAI ………………………… PETITIONER
RULING
Application to reinstate a dismissed application of 29. 5.07 for non attendance
---------------------------------------------------------------
I: Background
1. The advocate for the applicant in application dated 29th May, 2007 that sought an application to revoke grant failed to attend court on 26th May, 2009 when this matter was called up for hearing.
2. The matter concerned a succession cause in which the said advocate for the applicant and an advocate for the Petitioner/Respondent were to hear a consolidated matter before this court being HC. P&A. 226/06 and HC. P&A. 245/06.
3. The Court waited for the advocate and by 11. 15a.m the petitioner/respondents advocate moved the court to have the application dismissed.
4. This was granted.
5. On the 26. 5.09 the advocate filed an application to reinstate his application under Rules 73 of the Probate and Administration Act.
II: Application dated 26th May, 2009 to reinstate suit.
6. The advocate informed the court that he had to leave Kericho and go out of town to deal with an emergency. This he did but by the time he reached Kericho the matter had already been disposed of.
7. In reply, the advocate for the petitioner/respondent stated that the applicant was not a widow to the deceased and the application was defective.
III: Findings
8. The Court would accept the advocates for the applicant’s explanation that he was not able to attend court due to unforeseen circumstances not fully disclosed to court.
9. Obiter dictum
The procedure of taking dates to court should be carefully monitored by the Deputy Registrar. That the dates for hearing of this application was for 11. 6.09, then 8. 6.09. These were taken exparte and were irregular. The Deputy Registrar to note the same.
10. The costs of allowing this application will go to the petitioner. These will be assessed at throw away costs of Kshs. 2,000/= to be paid personally by the advocate for the applicant to the Petitioner/respondent.
DATED this 11th day of June, 2009 at KERICHO.
M.A. ANG’AWA
JUDGE
Advocates
S.K. Sigira advocate instructed M/S Siele Sigira & Co. advocates
for the objector/applicant – present
S.G. Ong’anyi advocate instructed by M/S S.G. Onganyi & Co. advocates
for the petitioner/respondent