[2022] KEHC 14164 (KLR)
The court found that the dismissal of the application dated 9th September 2009 was satisfactorily explained by the applicant, as the absence of counsel was due to a clerical error. Furthermore, the closure of the cause was effected without proper notice to the applicant, as evidenced by the absence of such notice on...
Source-derived case information.
- Citation
- [2022] KEHC 14164 (KLR)
- Parties
- Applicant: Joseph Philip Nyamongo Nyangami; Respondent: Naftal Ogwokia Mwamba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2217 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Dismissal and Reinstate Cause
- Outcome
- Application to set aside dismissal and reinstate cause allowed.
- Judges
- AO Muchelule
- Legal Topics
- Revocation of Grant, Intestate Succession, Reinstatement of Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Philip Nyamongo Nyangami
Applicant
Naftal Ogwokia Mwamba
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Dismissal and Reinstate Cause
Legal Issues
- 1 Whether the orders dismissing the application dated 9th September 2009 and closing the cause should be set aside and the cause reinstated.
- 2 Whether the applicant was denied an opportunity to be heard due to lack of notice and misdiarising of the hearing date.
Ratio Decidendi
The court found that the dismissal of the application dated 9th September 2009 was satisfactorily explained by the applicant, as the absence of counsel was due to a clerical error. Furthermore, the closure of the cause was effected without proper notice to the applicant, as evidenced by the absence of such notice on the court record. In the interests of justice and to ensure that the applicant is not denied the opportunity to be heard, the court exercised its discretion to review and set aside the orders dismissing the application and closing the cause. The cause and the application for revocation of grant were reinstated to allow for a substantive hearing on the merits.
Court Disposition
Application to set aside dismissal and reinstate cause allowed.
Orders
- Orders of 16th May 2018 and 5th June 2018 are reviewed and set aside.
- The cause is reinstated.
Full Case Text
Judgment text and source record
20 paragraphs
In re Estate of Wilson Mwamba Nyamogo (Deceased) (Succession Cause 2217 of 2004) [2022] KEHC 14164 (KLR) (Family) (19 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14164 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 2217 of 2004
AO Muchelule, J
October 19, 2022
Ruling
1. The deceased Wilson Mwamba Nyamongo died intestate on 21st January 1989. On 21st January 2004 his son Naftal Ogwokia Mwamba (the respondent) petitioned for the grant of letters of administration intestate. The grant was issued to him on 20th September 2004. It has not been confirmed.
2. The properties indicated to belong to the deceased were Eastleigh Section III Plot No. 171, Laitigo Settlement Scheme Plot No. 8, Nyabisia In-Bassi-Loc. Plot No. 461 and Riyabo In-Bassi-Loc Plot No.
3. The applicant Joseph Philip Nyamongo Nyangami states that he is the son of the late Josiah Nyangami Mwamba who was the deceased’s son. In the application dated 9th September 2009 he sought the revocation of the grant under sections 47 and 76 of the Law of Succession Act (Cap. 160) on the basis that he was not consulted or his consent sought when the petition was filed and grant issued, and that he was a joint owner or interested party of the properties Plot No. 171 at Eastleigh Section III, Nairobi and Plot No. 8 at Laitigo Settlement Scheme.
4. The respondent filed a replying affidavit to oppose the application. He denied that the applicant’s late father (his brother) was the owner of the parcels, or that he had any interest in them. He did not deny that he had not sought the applicant’s consent when petitioning for the grant or obtaining the grant. He stated that he was obliged to seek the consent of the deceased’s living children, which he did; that the applicant was a grandchild of the deceased whose consent was not necessary.
5. When the application came for hearing on 16th May 2018 the applicant’s counsel was absent, and therefore it was dismissed for want of prosecution. The advocate’s counsel states that he was absent because the clerk misdiarised the matter. On 5th June 2018 the cause was ordered closed on the basis that notice of closure was served but that no action had been taken. It is deponed that no such notice was served. Indeed, the court record has no such notice.
6. The present application dated 21st January 2020 seeks to set aside and/or review the orders of 5th June 2018 and 5th June 2018 (not 30th May 2017 as shown in the application) dismissing the above application and closing the cause, so that the application can be set down for hearing. This application was not opposed although served. The delay to bring the application was occasioned by the file having gone missing for a long time, it was deponed.
7. This is an old matter, and one does not know why the respondent has not cared to have the grant issued to him confirmed, and the estate distributed to the beneficiaries.
8. In my determination, the reasons behind the dismissal of the application dated 9th September 2009 have been explained to my satisfaction. The closure of the cause was done without notice. Consequently, I review and set aside the orders of 16th May 2018 and 5th June 2018. The cause is reinstated, and the application dated 9th September 2009 is reinstated.
9. The application dated 9th September 2009 shall be heard on 6th February 2023. The applicant shall within 30 days’ file and serve written submissions. On service, the respondent shall file and serve written submissions within 30 days.
10. Cots shall follow the event.
DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 19TH DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE