[2014] KEHC 8383 (KLR)
The court held that while the applicants' application for revocation of grant was procedurally irregular for being brought by originating summons instead of summons, the ends of justice would best be served by allowing the substance of the application to be heard and determined on its merits. The court exercised its...
Source-derived case information.
- Citation
- [2014] KEHC 8383 (KLR)
- Parties
- Applicant: June Wanjugu Koinange; Applicant: Jane Njeri Ngure; Applicant: Samuel Gitau Mbuthia; Respondent: Francis Kirima M’Kunyua; Respondent: Peter Kioko Ndiku; Respondent: David Murigi Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 287 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Summons to Strike Out Application for Revocation of Grant
- Outcome
- Summons to strike out dismissed; application for revocation to be heard on merits; costs awarded to petitioners.
- Judges
- AO Muchelule
- Legal Topics
- Succession Proceedings, Revocation of Grant, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
June Wanjugu Koinange
Applicant
Jane Njeri Ngure
Applicant
Samuel Gitau Mbuthia
Applicant
Francis Kirima M’Kunyua
Respondent
Peter Kioko Ndiku
Respondent
David Murigi Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Summons to Strike Out Application for Revocation of Grant
Legal Issues
- 1 Whether the application for revocation of grant was fatally defective for being brought by originating summons instead of summons under the Probate and Administration Rules.
- 2 Whether the substance of the applicants' claim should be heard on its merits despite the procedural defect.
Ratio Decidendi
The court held that while the applicants' application for revocation of grant was procedurally irregular for being brought by originating summons instead of summons, the ends of justice would best be served by allowing the substance of the application to be heard and determined on its merits. The court exercised its inherent power under rule 73 of the Probate and Administration Rules to prevent injustice and refused to strike out the application solely on the basis of the procedural defect. The petitioners' summons to strike out was therefore dismissed, but they were awarded costs of the application.
Court Disposition
Summons to strike out dismissed; application for revocation to be heard on merits; costs awarded to petitioners.
Orders
- The application for revocation of grant shall be listed for hearing on the substance.
- The petitioners' summons to strike out is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
MISC. APPL. NO. 287 OF 2013
IN THE MATTER OF THE ESTATE OF DINAH MUTHONI MBUTHIA alias DINA MUTHONI MBUTHIA DECEASED)
JUNE WANJUGU KOINANGE
JANE NJERI NGURE
SAMUEL GITAU MBUTHIA
(Suing as the administrators of the estate of
DINA MUTHONI MBUTHIA……………...………......APPLICANTS
VERSUS
FRANCIS KIRIMA M’KUNYUA
PETER KIOKO NDIKU
DAVID MURIGI MWANGI (the officials of
MWIHOTI SELF HELP GROUP.…..PETITIONERS/RESPONDENTS
RULING
On 30th April 2013 this court issued a grant of letters of administration intestate to the petitioners JANE WANJUGU KOINANGE, JANE NJERI NGURE and SAMUEL GITAU MBUTHIA in regard to the estate of the deceased DINAH MUTHONI MBUTHIA alias DINA MUTHONI MBUTHIA. The deceased died on 28th July 2012 at Kenyatta National Hospital. The 1st and 2nd petitioners were her daughters and the 3rdpetitioner was her son. On 11th September 2013 the applicants FRANCIS KIRIMA M’KUNYUA, PETER KIOKO NDIKU and DAVID MURIGI MWANGI (suing as the officials of MWIHOTI SELF HELP GROUP) applied, by way of originating summons, to have the grant revoked on the ground that their members were unaware of the Cause and grant when they have been all the time in actual control and possession of land parcel LR No. 3811/6 within Githurai in Nairobi which forms part of the estate. They stated that they were in continuous exclusive and uninterrupted possession of the land on which they have constructed permanent and semi-permanent structures and otherwise developed extensively for over twelve years and were therefore beneficiaries. The petitioners were being accused of material non-disclosure.
The application was stated to be brought under section 76 of the Law of Succession Act (Cap 160) and rule 44(1) of the Probate and Administration Rules.
On 27th February 2014, the petitioners filed the present summons under rule 73 of the Probate and Administration Rulesseeking that he applicants’ application be struck out for being incurably defective because it had been initiated by way of “originating summons.” The applicants were required to take out summons under rule 44 (1) of the Probate and Administration Rules. The petitioners asked that the petition be allowed to proceed for confirmation.
The summons to strike out was served but did not elicit any response. A hearing date was taken and served. The applicants did not attend. MR MBAABU for the petitioners prosecuted the matter.
The substance of the applicants’ application was that, although the property was inthe name of the deceased, they were in actual control and possession of the same, and had extensively developed the same to the knowledge of the deceased to the extent that they had become beneficiaries to the estate. Their case was that they ought to have been made aware of the proceedings and the subsequent grant. Section 76(b) of the Act allows such applicant to seek the revocation of the grant if material information was concealed from the court at the time of the grant. What is clear is that the form of the application is what the petitioners have a problem with. The application is headed “originating summons” instead of “summons.” It is true that originating summons is in itself a suit, and such suit cannot be filed within another suit (in this case, Succession Cause).
The summons to strike out was brought under rule 73 of the Probate and Administration Rules which provides as follows:
“73. Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
In my view, the ends of justice can only be best served if the substance of the applicants’ application is allowed to be heard and decided on merits. This is whyI make an order that the application shall be listed for hearing on the substance. That means that the petitioners summons to strike out fails, but they will have costs of the same.
DATED and DELIVERED at NAIROBI this 15th July, 2014
A.O. MUCHELULE
JUDGE