[2015] KEHC 1915 (KLR)
The court found that, as a probate court exercising equitable jurisdiction, it could cure the objector's inadvertence in failing to attend court, provided compensation is made to the executor. The court held that the objector's reliance on the online cause list, though not a strong excuse, was sufficient to warrant...
Source-derived case information.
- Citation
- [2015] KEHC 1915 (KLR)
- Parties
- Objector: Objector (Name not provided); Executor: Executor (Name not provided)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1184 of 2012
- Procedural Posture
- Succession Cause / Ruling on Application to Reinstate Objection and Cross Petition
- Outcome
- Application allowed; objection and cross-petition reinstated; grant of probate suspended; costs awarded to executor.
- Judges
- DN Musyoka
- Legal Topics
- Probate Proceedings, Grant of Probate, Reinstatement of Objection, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Objector (Name not provided)
Objector
Executor (Name not provided)
Executor
Procedural Posture
Succession Cause / Ruling on Application to Reinstate Objection and Cross Petition
Legal Issues
- 1 Whether the objector's failure to attend court on the hearing date justified dismissal of the objection and cross-petition.
- 2 Whether the orders made on 7th July 2014 should be reviewed and the objection proceedings reinstated.
- 3 Whether the objector should compensate the executor for the inconvenience caused.
Ratio Decidendi
The court found that, as a probate court exercising equitable jurisdiction, it could cure the objector's inadvertence in failing to attend court, provided compensation is made to the executor. The court held that the objector's reliance on the online cause list, though not a strong excuse, was sufficient to warrant reinstatement of the objection and cross-petition in the interests of justice, subject to payment of throwaway costs to the executor. The orders made on 7th July 2014 were reviewed, the objection proceedings reinstated, and the grant of probate suspended pending further orders.
Court Disposition
Application allowed; objection and cross-petition reinstated; grant of probate suspended; costs awarded to executor.
Orders
- The grant of probate of written will made on 7th July 2014 is hereby suspended, so that it shall not be uttered anywhere by the executor until further orders of this court.
- The orders made on 7th July 2014 are hereby reviewed so that the objection, answer to the petition and the petition by way of cross-application are hereby reinstated.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1184 OF 2012
IN THE MATTER OF THE ESTATE OF NAOMI NJAMBI KARIUKI (DECEASED)
RULING
1. This matter came up on 7th July 2014 for the hearing of the petition, objection and cross-petition. The objectors did not attend court although the date for hearing had been obtained at the registry by consent of both sides, I dismissed the objection and cross petition, and allowed the petition.
2. The objector has now come to court by an application dated 18th September 2014. He says the failure on his part to attend court on the appointed date was inadvertent, for he relied on the online cause list which did not mention the cause.
3. The executor contests the application. He argues that the date had been fixed by consent and the matter was properly listed, therefore there could be no plausible excuse for failing to attend court.
4. This is a family matter. The probate court is largely a court of equity. The inadvertence on the part of the objector can be cured, of course with compensation to the executor.
5. The orders that I am persuaded to make are:-
That the grant of probate of written will made on 7th July 2014 is hereby suspended, so that it shall not be uttered anywhere by the executor until further orders of this court;
That the orders made on 7th July 2014 are hereby reviewed so that the objection, answer to the petition and the petition by way of cross-application are hereby reinstated;
That the objection proceedings shall be heard on dates to be given at the registry on priority; and
That the objector shall pay to the executor throwaway costs of Kshs. 5,000. 00 within thirty (30) days.
DATED, SIGNED and DELIVERED at NAIROBI this 2ND DAY OF OCTOBER, 2015.
W. MUSYOKA
JUDGE