[2025] KEHC 5757 (KLR)
The court found that the applicant's request for review did not meet the requirements under Order 45 of the Civil Procedure Rules, as the application did not present any new evidence or error apparent on the face of the record. The court further held that, with both administrators of the estate deceased, the grant...
Source-derived case information.
- Citation
- [2025] KEHC 5757 (KLR)
- Parties
- Applicant: Bernard Thairu Gathama; Respondent: Ms. Mureithi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1348 of 1999
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Previous Orders and for Substitution as Beneficiary
- Outcome
- application dismissed
- Judges
- PM Nyaundi
- Legal Topics
- Revocation of Grant, Substitution of Beneficiary, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Thairu Gathama
Applicant
Ms. Mureithi
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Previous Orders and for Substitution as Beneficiary
Legal Issues
- 1 Whether the applicant is entitled to have the proceedings, ruling, and orders of 11th October 2024 set aside.
- 2 Whether the applicant can be substituted as a beneficiary to prosecute the summons for revocation of grant on behalf of his deceased mother.
- 3 Whether the application for review falls within the ambit of Order 45 rule 1, 2 and 3 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant's request for review did not meet the requirements under Order 45 of the Civil Procedure Rules, as the application did not present any new evidence or error apparent on the face of the record. The court further held that, with both administrators of the estate deceased, the grant in question was already revoked by operation of law under Section 76 of the Law of Succession Act, rendering any application for revocation or substitution futile. The court concluded that reinstating the application would serve no practical purpose and would be an abuse of court process. The applicant, if aggrieved, should pursue an appeal rather than a review.
Court Disposition
application dismissed
Orders
- The application dated 12th October 2024 is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
21 paragraphs
In re Estate of Watatua Kibere (Deceased) (Succession Cause 1348 of 1999) [2025] KEHC 5757 (KLR) (Family) (9 May 2025) (Ruling)
Neutral citation: [2025] KEHC 5757 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 1348 of 1999
PM Nyaundi, J
May 9, 2025
IN THE MATTER OF WATATUA KIBERE (DECEASED)
Ruling
1. Vide Notice of Motion application dated 12th October 2024, the Applicant seeks the following orders;1. Spent2. That this Honourable Court be pleased to set aside the proceeedings, ruling and consequential orders made by the learned Hon. Lady justice P. Nyaundi SC on 11th October 2024 closing the file terminating and terming the summons for the revocation of grant as waste of time.3. That this Honourable Court be pleased to and hereby order that there be a maintenance of the status quo of the applicants place of residence herein pending the hearing and final determination of this application.4. That this Honourable Court be pleased to grant the right to be substituted as a beneficiary of the estate of Watatua Kibere ( Deceased) to prosecute the summons for revocation of grant dated 28th January 2022 on behalf of her ( sic) deceased mother.5. That the costs of this application be provided for.
2. The Application is supported by the annexed affidavit of Bernard Thairu Gathama sworn on 12th October 2024. The Applicant is aggrieved by the ruling of this court delivered on 11th October 2024 and seeks its review on the ground that it was erroneous and failed to ccapture or reflect the true positionof the suitand applications filed so far.
3. The Applicant states that the Court erred in disposing of the summons for revocation when what was before the Court for consideration was an application dated 15th April 2024 to allow him substitute his deceased mother as the applicant in the matter.
4. It is further stated that the Court erred in finding that he had withdrawn his application when this was not the position.
5. The Respondent has filed an affidavit in opposition sworn on 11th July 2024.
Analysis and Determination 6. The Applicant herein is seeking to restore an application for substitution for hearing so that he can prosecute a summons for revocation of grant. In dismissing the application earlier I indicated that it would be a waste of judicial time to prosecute that application.
7. The Applicant urges that he has a constitutional right to be heard, that may be so, but that right is hinged on the requirement that what he presents is a competent application that justifies the expending of judicial mind and time, which as stated in my earlier ruling is scarce.
8. I am not persuaded that the application as presented by the Applicant falls within the ambit of Order 45 rule 1,2 and 3 of the Civil procedure Rules. In my ruling I was of the view that the summons was an abuse of court process. That cannot be reviewed, the applicant if aggrieved ought to appeal. The fact however is that both administrators having died, the grant stands revoked pursuant to Section 76 of the Law of Succession Act. There is no grant for the Applicant to seek revocation of as both adminstrators are dead.
9. Even if I were to reinstate his application to substitute the deceased administrator so as to enable him pursue the application for revocation, it would be an exercise in futility, both administrators are dead. The grant is inoperative.
10. The Application is accordingly dismissed each party to bear their own costs.
SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 9TH DAY OF MAY, 2025. P M NYAUNDIHIGH COURT JUDGEIn the presence of:Gikunju holding brief for Ms. Mureithi for RespondentFardosa Court Assistant