[2017] KEHC 5852 (KLR)
The court found that the applicant and his counsel were not present when the consent order was recorded, and his counsel had withdrawn due to lack of instructions. However, the court emphasized that while it cannot remove an executor appointed by a testator, it has the power to revoke grants made to executors. The...
Source-derived case information.
- Citation
- [2017] KEHC 5852 (KLR)
- Parties
- Applicant: John Njenga Kinuthia; Respondent: Irene Wacuka Kinuthia; Respondent: Stephen Marabu Mwangi; Respondent: Samuel Chaga; Respondent: Serah Wamaitha Kinuthia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2636 of 2006
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Consent Order
- Outcome
- application dismissed
- Judges
- DN Musyoka, MW Muigai
- Legal Topics
- Probate and Administration, Executor Removal, Consent Orders, Grant Revocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njenga Kinuthia
Applicant
Irene Wacuka Kinuthia
Respondent
Stephen Marabu Mwangi
Respondent
Samuel Chaga
Respondent
Serah Wamaitha Kinuthia
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order made on 17th June 2014 should be set aside on grounds that the applicant was not party to the consent and his lawyer had withdrawn from the matter.
- 2 Whether the applicant should be reinstated as executor of the deceased's estate.
Ratio Decidendi
The court found that the applicant and his counsel were not present when the consent order was recorded, and his counsel had withdrawn due to lack of instructions. However, the court emphasized that while it cannot remove an executor appointed by a testator, it has the power to revoke grants made to executors. The grant to the applicant had already been revoked by the consent order. The applicant's absence and lack of participation in the administration of the estate, as well as his disinterest, justified the refusal to reinstate him as executor. The application to set aside the consent order was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application dated 16th December 2015 is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO. 2636 OF 2006
IN THE MATTER OF THE ESTATE OF JAMES KINUTHIA KINYANJUI (DECEASED)
RULING
1. The application dated 16th December 2015 is brought at the instance of John Njenga Kinuthia, one of the executors of the will of the deceased. He would like an order made by consent on 17th June 2014 to be set aside on the grounds he was not party to the consent, and his lawyer, who had just withdrawn from the matter, could not bind him.
2. His plea is opposed. Irene Wacuka Kinuthia swore an affidavit on 29th August 2016 to state that the applicant is based abroad in Sweden; hence he has been unable to discharge his duties as executor of the will of the deceased, leaving Stephen Marabu Mwangi to act for many years as sole executor. He is described as disinterested in the management of the estate. There are similar affidavits by other beneficiaries, such as Samuel Chaga and Serah Wamaitha Kinuthia.
3. The consent was recorded on 17th April 2014 after Mr. Githuka had expressed his frustration with his inability to get instructions from counsel for the instant applicant. Indeed, the matter was mentioned many times on many issues but the court could not make progress as both the applicant and his counsel were not attending court sessions, and it appeared as if Mr. Githuka was reluctant to come to court without a proper brief from the applicant. Tired of the status quo, he withdrew from acting. He was not party to the consent that was recorded on 17th April 2014.
4. I am cognizant of the fact that executors are appointed by the testators and not the court. The court cannot remove them from office as executors, but it can revoke grants made to them. That is what happened on 17th April 2014. I am not persuaded that the applicant should be reinstated. The application is accordingly dismissed. Costs shall be in the cause.
DATED and SIGNED at NAIROBI this 3RD DAY OF MAY, 2017.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 5TH DAY OF MAY, 2017.
M. MUIGAI
JUDGE