[2019] KEHC 2085 (KLR)
The court held that the Law of Succession Act is a self-contained code, and only certain provisions of the Civil Procedure Act and Rules are applicable to succession proceedings as expressly provided under Rule 63 of the Probate and Administration Rules. The applicants' motion was brought under provisions not...
Source-derived case information.
- Citation
- [2019] KEHC 2085 (KLR)
- Parties
- Applicant: Teresa Akuku; Applicant: Violet Adongo; Respondent: Augustine Lennox Oduory; Respondent: West Kenya Sugar Ltd; Respondent: Tejveer Singh Rai
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 188 of 2011
- Procedural Posture
- Probate and Administration / Ruling on Notice of Motion to Strike Out Affidavit and Revive Application
- Outcome
- application struck out with costs
- Judges
- KW Kiarie
- Legal Topics
- Succession Proceedings, Probate Rules, Applicability of Civil Procedure, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Akuku
Applicant
Violet Adongo
Applicant
Augustine Lennox Oduory
Respondent
West Kenya Sugar Ltd
Respondent
Tejveer Singh Rai
Respondent
Procedural Posture
Probate and Administration / Ruling on Notice of Motion to Strike Out Affidavit and Revive Application
Legal Issues
- 1 Whether the application brought under the Civil Procedure Act and Rules is competent in succession proceedings.
- 2 Whether the applicants, as beneficiaries, can revive a discontinued application after an alleged out-of-court settlement.
- 3 Whether the applicants are estopped from changing their position after discontinuing the matter.
Ratio Decidendi
The court held that the Law of Succession Act is a self-contained code, and only certain provisions of the Civil Procedure Act and Rules are applicable to succession proceedings as expressly provided under Rule 63 of the Probate and Administration Rules. The applicants' motion was brought under provisions not imported into succession law, rendering the application incompetent and fit for striking out. Furthermore, even if the application had been properly brought, the applicants, having been represented by counsel and having previously discontinued the matter after an alleged settlement, could not be permitted to revive the application. The court applied the doctrine of estoppel, holding...
Court Disposition
application struck out with costs
Orders
- The application is struck out.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO. 188 OF 2011
IN THE ESTATE OF:
JAMES ANGELO MAKONA................................................DECEASED
BETWEEN
TERESA AKUKU............................................................1ST APPLICANT
VIOLET ADONGO........................................................2ND APPLICANT
AND
AUGUSTINE LENNOX ODUORY...........................1ST RESPONDENT
WEST KENYA SUGAR LTD...................................2ND RESPONDENT
TEJVEER SINGH RAI.............................................3RD RESPONDENT
RULING
1. Teresa AkukuandViolet Adongo, the applicants herein moved the court by way of Notice of Motion brought under section 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and all other enabling provisions of the law. They are seeking the following orders:
a)That this honourable court be pleased to order that the affidavit sworn on the 20th day of July 2015 and filed herein on the 26th of October 2015 be struck out and/or expunged from court record.
b)That the application dated 17th June, 2013 be set down for hearing.
c)That costs be provided for.
2. The application is premised on the following grounds:
a) That the applicants are beneficiaries and/or heirs to the deceased’s estate.
b) That the applicants instructed their then advocate on record to file the application dated17th June, 2013 to safeguard their interests in the estate of the deceased.
c) The applicants were then approached by the second defendant (sic) for an out of court settlement and were duped into discontinuing the matter without material disclosure.
d) That the applicants have been unjustly disinherited and seek to pursue their claim in this court.
e) That the applicants were never granted their day in court and have been aptly advised on their legal status and position.
f) That the respondents will not be prejudiced as they will have their day in court.
3. The application was opposed on the followings grounds:
a) That the applicants are seeking to revive a matter that has already been settled.
b) That the application is an abuse of the court process.
4. It is settled law that the Law of Succession Act is a self-contained Act and provisions of the Civil Procedure Act, unless specifically imported into it are not applicable. Rule 63 of of the Probate and Administration Rules provides as follows:
1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.
(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.
In the case of Priscilla Vugutsa Kamaliki vs. Mary Runyanyi Ochieng [2016] eKLR judge Ruth Sitati observed as follows:
A look at Rule 63 of the Law of Succession Act reveals that the provisions under which the present application is brought are not some of the provisions imported into the Law of Succession Act. What this means therefore is that the instant application is incompetent for want of form and is therefore fit for striking out.
I fully agree with the learned judge. The same fate will apply to the application which was brought under provisions that have not been incorporated into the law of succession.
5. It is doubtful whether the application even if it was brought under the provisions of the Law of Succession Act would have succeeded. A party cannot be allowed to change positions at will without regard to the fact that the earlier position may have led the other to act. The applicants were represented by an advocate and cannot claim they were duped. Equity will estop them from turning the wheel backward.
6. The upshot of the foregoing observations is that the application is struck out with costs.
DELIVERED AND SIGNED AT BUSIA THIS 21ST DAY OF NOVEMBER, 2019
KIARIE WAWERU KIARIE
JUDGE