[2016] KEHC 6717 (KLR)
The court found that although notice was sent to the petitioner’s postal address, it did not specify the date for appearance in court, only providing a general period for action or dismissal. In the interest of justice and expeditious disposal of succession matters, and given the petitioner’s demonstrated...
Source-derived case information.
- Citation
- [2016] KEHC 6717 (KLR)
- Parties
- Applicant: Rael Munyiva Ndivo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 324 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Reinstatement of Cause
- Outcome
- Application for reinstatement of the Succession Cause granted.
- Judges
- EM Muriithi
- Legal Topics
- Succession Proceedings, Grant Revocation, Reinstatement of Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rael Munyiva Ndivo
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Reinstatement of Cause
Legal Issues
- 1 Whether the Succession Cause should be reinstated after revocation of the Grant for want of prosecution.
- 2 Whether the petitioner was properly served with notice to show cause before revocation of the Grant.
Ratio Decidendi
The court found that although notice was sent to the petitioner’s postal address, it did not specify the date for appearance in court, only providing a general period for action or dismissal. In the interest of justice and expeditious disposal of succession matters, and given the petitioner’s demonstrated willingness to proceed, the court held that the Succession Cause should be reinstated to allow the administration of the estate to be concluded without requiring a fresh petition. The court emphasized that the interests of justice would be better served by processing the existing grant to confirmation rather than restarting the process.
Court Disposition
Application for reinstatement of the Succession Cause granted.
Orders
- The summons for reinstatement of the Succession Cause dated 18.9.2015 is granted with costs in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 324 OF 2011
IN THE MATTER OF THE ESTATE OF NDIVO MUTHIKE – DECEASED
RAEL MUNYIVA NDIVO ………………...….PETITIONER/APPLICANT
RULING
I have considered the application dated 18. 9.2015 which seeks an order for reinstatement of the Succession Cause herein for hearing. The court (Lucy Njuguna, J) on 16. 7.2015 revoked the Grant herein issued on 30. 5.2012 for want of prosecution pursuant to Section 76(d)(i) of the Law of Succession after notice under Section 73 of the Law of Succession Act was shown to have been given to the petitioner.
The petitioner states that notice to attend court on 16. 7.2015 for purposes of showing cause was not served on her, and the delay in seeking confirmation of Grant has been explained by alleged failure to trace the file at the Registry.
I have noted that the notice given by the court given dated 23. 6.2015 was sent to the Petitioner’s Postal address as given in the petition. However, the notice did not state when the matter would come up in court. It only gave the period “between 6th July, 2015 to 25th July, 2015 for further necessary action/and or dismissal”.
In these circumstances, I consider that the petitioner who by the application for reinstatement has demonstrated willingness to have the administration of the Estate finally concluded by a confirmation of Grant should be permitted to bring the Succession proceedings to an effective end. The interest of expeditious disposal of cases under Article 159 of the Constitution would rather have the Grant already issued processed to confirmation rather than have the entire process of Petition for a new grant restarted following the revocation of the Grant of 30. 5.2012.
Accordingly, the summons for reinstatement of the Succession Cause dated 18. 9.2015 is granted with costs in the cause.
DATED, SIGNED AND DELIVERED THIS 18TH DAY OF FEBRUARY, 2016.
…………………………………..
EDWARD M. MURIITHI
JUDGE
In the presence of: -
Mr. Kyalo for Petitioner/Applicant
Ms. Doreen – Court Assistant