https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9030

In re Estate of Thuo (Deceased) (Probate & Administration 95 of 2016) [2026] KEHC 9030 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 9030 (KLR) Republic of Kenya In the High Court at Kiambu Probate & Administration 95 of 2016 MN Mwangi, J June 12, 2026 ESTATE OF ALBERT CHEGE THUO Between Jane Njango Thuo Applicant and John Ndungu Muthama Respondent Ruling 1.Before this Court is a Notice of Motion application dated 4th December 2024 filed pursuant to Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010. The applicant seeks orders for this Court to set aside the Orders issued on 15th October 2024 dismissing her suit for want of prosecution. She also seeks orders for reinstatement of the application dated 3rd September 2024, for hearing and determination. 2.The application is premised on the grounds set out on the face of the Motion and the affidavit in support thereof, sworn on 4th December 2024 by Mr. Edwin Warui Maina, learned Counsel for the applicant. Mr. Warui deposed that he filed an application dated 3rd September 2024, wherein the applicant sought leave to be joined to this matter, to have the Summons of Revocation of Grant dated 10th March 2023, heard and determined by the Court and to have the Mediation Report adopted as an Order of the Court on 4th March 2023, declared null and void ab initio. 3.Mr. Warui averred that the application was fixed for interpartes hearing on 15th October 2024, but its firm wrongly diarized the matter for 25th October 2024, which led to its dismissal for want of prosecution. He stated that it was an honest mistake which should not be visited upon the applicant who is committed to prosecute the matter to its logical conclusion. He averred that the applicant stands to suffer irreparable loss and urged this Court to allow the application in the interest of justice since no prejudice will be occasioned to the respondent. 4.In opposition to the application, the respondent filed a replying affidavit sworn on 26th June 2025 by Mr. John Ndungu Muthama. He averred that the application herein is an abuse of Court process meant to waste the Court’s time. He stated that the applicant has not given any valid reasons for failure to attend Court on the day the application was dismissed. He averred that the application herein was filed after inordinate delay, as it was not filed within 30 days of the Order made on 15th October 2024. He deposed that this Court has a duty to safeguard the integrity of the process by dismissing applications meant to delay administration of justice. 5.Mr. Ndungu claimed that the excuse given that the matter was mis-diarized is not supported by evidence such as an affidavit from the applicant’s Advocate’s Clerk or diary entries, and it does not amount to sufficient cause, as required under Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules, 2010. He deposed that equity aids the vigilant, not the indolent and stated that the applicant had not demonstrated reasonable diligence in managing the case or promptly applying for reinstatement after dismissal. He further deposed that the application herein is meant to delay administration of the Estate of the deceased and the applicant has not shown how she will suffer irreparable loss if the orders being sought herein are not granted. He urged this Court to dismiss the instant application. 6.The application was canvassed by way of written submissions. The applicant filed submissions dated 11th October 2025 through the law firm of Warui Maina & Co Advocates. The respondent filed submissions dated 29th April 2026 through the law firm of Njuguna J.K. & Co Advocates. 7.Mr. Warui, learned Counsel for the applicant submitted only on the main application that was dismissed, and not on the instant one for reinstatement, which is not the subject of this Ruling. He submitted that the applicant was a party to these proceedings but she did not participate in the Mediation. He stated that the applicant seeks leave to participate in the matter so that the Mediation Settlement Agreement can be set aside and the Summons for Revocation of Grant heard and determined pursuant to Section 76 of the Law of Succession Act. 8.He argued that the applicant is a legitimate beneficiary who was left out, and is at the risk of losing her inheritance. He submitted that mediation should be based on willingness of the parties and cited the case of Re Estate of Stone Kathuli Muinde (Deceased) [2016] KEHC 3725 KLR, to support the claim. He stated that the applicant and the daughters of the deceased were not involved in the mediation, since the respondent misrepresented to the Court that they were the only beneficiaries of the Estate. Counsel urged this Court to allow the application dated 3rd September 2024. 9.Mr. Njuguna, learned Counsel for the respondent submitted that the application for reinstatement is governed by Order 12 Rule 7 and Order 17 Rule 2 of the Civil Procedure Rules. He stated that discretion of the Court should be exercised where there is sufficient cause and he relied on the case of Macharia v Macharia (Succession Cause 355 of 2008) [2025] KEHC 2657 (KLR) and the case of Njue Ngai v Ephantus Njiru & another [2016] eKLR. He further stated that mistake of Counsel should not be used as a blanket excuse, where it is unsupported. He placed reliance in the case of Ivita v Kyumbu [1984] KLR 441. 10.Counsel stated that the applicant lacks the locus standi to file the instant application under to Section 79 of the Law of Succession Act and cited the case of Estate of Kiptoo & 3 others v Kiptoo & 2 others [2022] KEHC 10188(KLR) and the case of Re Estate of Mwangi Nganga (Deceased) [2005] eKLR. He contended that the applicant is not a recognized dependant, within Section 29 of Law of Succession Act. He submitted that the Honourable Court had found that the applicant lacked locus standi. Counsel contended that the applicant had no basis in filing the present application as it offends the doctrine of res judicata under Section 7 of the Civil Procedure Act. 11.Mr. Njuguna submitted that this Court cannot sit on an appeal of its own decision and placed reliance on the case of Njue Ngai V Ephantus Njiru & another (supra). He argued that the applicant is seeking to relitigate issues that have already been determined. 12.On the Mediation Settlement Agreement, Counsel stated that mediation is allowed under Section 59B of Civil Procedure Act and Article 159(2)(c) of the Constitution and that such an Agreement is binding once it has been adopted as an order of Court, as it acquires the status of a Judgment of Court. He cited the cases of Re Estate of Meshach Kimursi Matutu (Deceased) [2025] KEHC 14614 (KLR); Re Estate of Naomi Njeri Ngethe (Deceased) [2024] KEHC 12141 (KLR), Re Estate of Maina Gathuri (Deceased) [2025] KEHC 16017 (KLR) and STK V ENK (Civil Appeal No. E053 of 2024) [2025] KEHC 15390 (KLR), to support his position. 13.Counsel emphasized that the Mediation Settlement Agreement was adopted as an Order of the Court on 4th July 2023 pursuant to Section 59B of the Civil Procedure Act and Order 46 Rule 20 of the Civil Procedure Rules. He stated that the applicant has not proved any vitiating factors to warrant it to be set aside. 14.He also stated that the application for leave to participate in these succession proceedings as a beneficiary of the Estate is unknown since Order 1 Rule 10(2) of the Civil Procedure Rules, only deals with joinder of parties who have an interest in the proceedings, not mere claimants with speculative or unverified interests. He relied on the cases of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1EA 55; the Supreme Court decision in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR and Re Estate of Mwaura Mutungi (Deceased) [2015] eKLR. 15.Mr. Njuguna asserted that the applicant has failed to meet the minimum threshold of joinder of parties as she has not proved dependency under Section 29 of the Law of Succession Act, which shows that she does not have an identifiable legal interest in the matter. He urged this Court to dismiss the application with costs. Analysis And Determination** 16.I have considered the Notice of Motion application, the replying affidavit and the written submissions filed by Counsel for the parties. The issue that arises for determination is whether the Court should reinstate the application dated 3rd September, 2024. 17.The principles governing reinstatement of suits were addressed in the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR, as follows: -“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.” (Emphasis added). 18.In this application, the applicant argued that her Counsel mis-diarized the matter for 25th October 2024 instead of 15th October 2024, and that the application scheduled for hearing was dismissed for non-attendance. Needless to say, litigants have a duty to follow up on their matters from the onset until conclusion. The Court in the case of Savings and Loans Limited Vs Susan Wanjiru Muritu Nairobi (Milimani) HCCC No. 397 of 2002 (U.R), expressed itself as follows:-“A litigant has a duty to pursue the prosecution of his or her case. The Court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend Court. It is the duty of the litigant to constantly check with her advocate the progress of her case.” 19.This Court needs to consider whether there are reasonable grounds raised that warrant the reinstatement of the application dated 3rd September 2024. As stated by the respondent, the applicant has not provided any evidence such as entries of his diary or an affidavit by the Clerk of the law firm representing her or even a letter advising her client of the wrong entry in his diary, to convince this Court that he mis-diarized the hearing date. Further, the applicant has not explained why it took her about 50 days to file the instant application after dismissal of the application dated 3rd September 2024. In my considered view, the time taken before the filing of the instant application constitutes unreasonable delay. 20.That being the case, the Court was justified to dismiss the suit application, and given that only the respondent was present on the day of the hearing, under the provisions of Order 12 Rule 3 of the Civil Procedure Rules, 2010, which state that: -‘If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.’ 21.This Court is not persuaded that it should exercise its discretion and reinstate the dismissed application, as the reasons given for non-attendance are not substantive. The Court will not address the submissions made by the applicant’s Counsel on the merits of the application dated 3rd September 2024, as that was not the subject of this Ruling.It is so ordered. DATED, SIGNED AND DELIVERED IN KIAMBU ON 12TH DAY OF JUNE 2026NJOKI MWANGIJUDGEIn the presence of:-Mr. Gwako h/b Mr. Njuguna for the respondentMs Kokonya h/b for Mr. Warui Maina for the applicantsMs Julia - Court Assistant.