[2008] KEHC 2335 (KLR)
The court held that the death of the objector does not automatically abate the objection proceedings if the cause of action survives and a legal representative can be substituted. However, since no legal representative had come forward and the objector died less than a year after filing the objection, the...
Source-derived case information.
- Citation
- [2008] KEHC 2335 (KLR)
- Parties
- Applicant: Peter Manono Mogire; Respondent: Jemima Mokeira Mogire
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 124 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Abatement of Objection Proceedings
- Outcome
- Interim orders issued; final determination deferred pending affidavits from surviving sons.
- Legal Topics
- Succession Proceedings, Abatement of Suit, Legal Representative, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Manono Mogire
Applicant
Jemima Mokeira Mogire
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Abatement of Objection Proceedings
Legal Issues
- 1 Whether the objection proceedings abated upon the death of the objector within one year of filing.
- 2 Whether a legal representative of the deceased objector can be substituted to continue the objection.
- 3 Whether the surviving sons consent or oppose the petitioner's application for abatement.
Ratio Decidendi
The court held that the death of the objector does not automatically abate the objection proceedings if the cause of action survives and a legal representative can be substituted. However, since no legal representative had come forward and the objector died less than a year after filing the objection, the sustainability of the objection was doubtful. The court ordered the other two sons of the deceased to file affidavits indicating their consent or opposition to the petitioner's application, after which a final determination would be made.
Court Disposition
Interim orders issued; final determination deferred pending affidavits from surviving sons.
Orders
- James O. Mogire and Meshack O. Mogire to file affidavits within thirty (30) days indicating whether they consent or oppose the petitioner's application.
- Matter to be mentioned on 11th July, 2008 at 9.00 a.m. for further orders.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Succession Case 124 of 2007
IN THE MATTER OF THE ESTATE OF LABAN MOGIRE MOGOGO …….. DECEASED
AND
PETER MANONO MOGIRE ………………..……. APPLICANT
VERSUS
JEMIMA MOKEIRA MOGIRE ………………… OBJECTOR
RULING
The petitioner filed an application under Section 47 of the Law of Succession Act urging the court to order that the objection proceedings commenced by the objector on 30th October, 2007 had abated because the objector died on 8th January, 2008.
It is trite law that the death of a plaintiff or a defendant or such other party to a suit does not automatically cause the suit to abate if the cause of action survives or continues. The objector was the widow of the deceased. According to the documents on record, there are three surviving sons of the deceased, the petitioner included. The objector’s claim was as follows:
(a) That she was not cited in the application of the grant.
(b) That being the widow of the deceased, Laban Mogire Mogoro, she was the next in line to succeed the deceased.
(c) That she had not consented to the application of the grant by the petitioner.
(d) That she wanted to be given the opportunity to distribute the deceased’s estate.
(e) That she needed to get a share of the parcel of land that the deceased had left for himself after distributing the rest amongst his children, “Emonga”, so that she could sustain herself until she dies.
However, a legal representative of the objector can still make an application to be made a party to this succession cause and show that the objection ought to be allowed to continue. The objector died less than one year from the date of filing the application. But as earlier stated, it is doubtful if the objection can still be sustained.
In the circumstances, I order that the other two sons of the deceased, James O. Mogire and Meshack O. Mogire, to file affidavits within thirty (30) days from the date hereof and indicate whether they consent or oppose the petitioner’s application. Thereafter the court will make a final determination.
The matter will be mentioned on 11th July, 2008 at 9. 00 a.m. for further orders.
DATED, SIGNED and DELIVERED at KISII this 9th day of June, 2008.
D. MUSINGA
JUDGE.
Delivered in open court in the presence of:
Applicant in person
D. MUSINGA
JUDGE.