[2016] KEHC 2300 (KLR)
The court held that, pursuant to Rule 63 of the Probate and Administration Rules, Order 45 of the Civil Procedure Rules applies to succession proceedings. Applications for review of a confirmed grant should be heard by the judge who issued the original grant, in this case Lady Justice Muchemi, to promote judicial...
Source-derived case information.
- Citation
- [2016] KEHC 2300 (KLR)
- Parties
- Objector: James Nyaga Kinyua; Administrator: Dewitt Njeru Simon
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 41 of 2015
- Procedural Posture
- Succession Cause / Application for Review of Confirmed Grant; Interlocutory Ruling
- Outcome
- Application to be placed before Lady Justice Muchemi for directions.
- Legal Topics
- Rectification of Grant, Review of Court Orders, Probate and Administration, Applicability of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Nyaga Kinyua
Objector
Dewitt Njeru Simon
Administrator
Procedural Posture
Succession Cause / Application for Review of Confirmed Grant; Interlocutory Ruling
Legal Issues
- 1 Whether the application for review of the confirmed grant should be heard by the judge who issued the original grant.
- 2 Whether Order 45 of the Civil Procedure Rules applies to succession proceedings via Rule 63 of the Probate and Administration Rules.
Ratio Decidendi
The court held that, pursuant to Rule 63 of the Probate and Administration Rules, Order 45 of the Civil Procedure Rules applies to succession proceedings. Applications for review of a confirmed grant should be heard by the judge who issued the original grant, in this case Lady Justice Muchemi, to promote judicial economy and consistency. The matter is therefore to be placed before Lady Justice Muchemi for directions on the review application.
Court Disposition
Application to be placed before Lady Justice Muchemi for directions.
Orders
- The application for review of the confirmed grant is to be placed before Lady Justice Muchemi for directions.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION CAUSE NO. 41 OF 2015 AND NO. 144 OF 2004
IN THE MATTER OF THE ESTATE OF JOHNSON KINYUA NJAGE (DECEASED)
JAMES NYAGA KINYUA.....................................................OBJECTOR
VERSUS
DEWITT NJERU SIMON...........................................ADMINISTRATOR
RULING
1. This ruling is in respect of the rectification of the confirmed grant in the two consolidated files. In succession cause No. 144/15 the amended confirmed grant was made by Lady Justice Muchemi on 15th June 2015. The other grant in succession cause No 41/15 is closely related to the above confirmed grant. The deceased in succession cause No. 144/04 is the father of the deceased in succession cause No. 41/15.
2. The law applicable in this matter is Order 45 of the 2010 Civil Procedure Rules which has been imported by Rule 63 of the Probate and Administration Rules into the Law of Succession Act (Cap 160) Laws of Kenya. Because of this, the Rules that govern applications for review under Order 45 of the 2010 Civil Procedure Rules apply fully in this application.
3. It therefore follows that Lady Justice Muchemi who is currently stationed in Embu is the one who should hear this review application. The provisions of Order 45 provide for review where there has been discovery of a new and important matter, that was unavailable at trial after exercising due diligence. Review is also permitted where there is an error or mistake apparent on the face of the record. Finally, it is also permitted for any sufficient reason. It is in the interests of judicial economy in terms of time and personnel that the matter be reviewed by Lady Justice Muchemi
4. In the light of the foregoing, I order that the application be placed before Lady Justice Muchemi for directions.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 29th day SEPTEMBER2016
In the presence of Mr. Ngari holding brief for Mr. Kitonga for the objector and Mr. Kamunyori for the administrator.
Court clerk Njue
J.M. BWONWONGA
JUDGE
29. 09. 16