[2017] KEHC 4213 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 591 OF 2014

IN THE MATTER OF THE ESTATE OF THE LATE KICH JOHN AYIECHO (DECEASED)

PAULINE ATIENO OIRO………………………APPLICANT/RESPONDENT

VERSUS

WALTER OLUOCH AYIECHO ………..…2ND RESPONDENT/APPLICANT

WALTER NYAWANDA AYIECHO…..........3RD RESPONDENT/APPLICANT

JACOB GUMBO AYIECHO ….….........…3RD RESPONDENT/APPLICANT

DICK OMONDI AYIECHO …….…….........4TH RESPONDENT/APPLICANT

RULING

1. The application for consideration is the summons dated 19/5/2016. The same is brought under Order 45, 47, 49 and 94 of the Law of Succession Act Rule 73 of the probate and Administration Rules. The application seeks the following prayers;

i. Spent

ii. Spent

iii. That the honorable court be pleased to review and set aside the ruling of the Honorable Lady Justice Ougo delivered on 6th April 2016.

iv. That cost of the application be provided

2. The application is based on grounds that the 1st, 2nd and 4th respondents were never served with the applicants Summons application dated 9th February 2016. That though the 3rd respondent was served with the said summons application and Hearing Notice failed to inform the 3rd respondent and represent him in the matter. That because the respondents were not aware of the said application they were not represented in court and the said application was not opposed and the same was allowed. That the nature of such serious application demands that all the parties must be served. That the respondents are aggrieved by the said court ruling and consequential orders. That if the said court orders are not stayed the respondent swill suffer irreparable loss and harm. That the said application was defective as it did not disclose the deceased’s assets and no evidence was given to prove ownership. That the family members have been unable to meet and agree on or ascertain the deceased’s assets and liabilities. That the applicant relied on the letters written and did not adduce any title documents and log books to and other searches therefore the application lacks merit and is an abuse of the court process. That the applicant failed to disclose all material facts and account for the millions she took from the deceased’s pension scheme in lap Trust. That the applicant has refused to meet the other family members to discuss the deceased’s properties and welfare benefits of the beneficiaries.

3. In opposition to the said application the respondent filed her replying affidavit dated 29th November 2016. She avers that the 3rd respondent’s advocates was duly served with the application dated 9th February 2016 but failed to attend court despite being an administrator of the estate while the other respondent continued to use deceased’s property live vehicle and rental income without care of the law. That the orders dated 6th April 2016 were properly made and should stand. Adding that the same are not prejudicial to the respondents at all. That the 3rd respondent has deliberately refused to co-operate with her in administration of the deceased’s estate.

4. The application was argued orally and parties made oral arguments as follows; Miss Omwakwe argued that the applicant was never served with the application dated 19/5/16. That the respondent had an advocate on record and they were served with the hearing notice but did not inform Jacob of the hearing and even wrote to the advocate asking why he was never informed of the same but the same did not illicit a response reasons they seek a review of orders requesting the court to allow the parties to be given a chance to be heard.

5. Mr. Mungla in opposing the said application argues that prayers 1 and 2 have since been overtaken by events and that it is only order 3 that subsists which in essence seeks to set aside 6 other orders. One restraining the applicants from dealing with the estate of the deceased, the applicant to render account of the estate. These two orders he argued are meant to preserve the estate of the deceased. Further order 4 orders the parties to comply with a consent order which he argues is not prejudicial. He argued that there is nothing wrong with the orders to require them to be set aside. He stated that in their affidavit they had alleged that the applicants were using the deceased’s vehicles for personal gain and urging the court to order them grounded. He argues that the application lacks merit and urges the court to dismiss the same.

6. Miss Omwakwe in reply argues that the order was made on material non-disclosure and the parties should be allowed to respond to the application and urges the court to allow the application. That Order 5, rule 7of the Civil Procedure Rules provides that, “where there are more defendants than one, service of the summons shall be made on each defendant. Order 5, rule 8 (1), provides service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.

(2) A summons may be served upon an advocate who has instructions to accept service and to enter an appearance to the summons and judgment in default of appearance may be entered after such service.

7. From the forego it is clear that the applicant ought to have served all persons she had levied the application against. The applicant admits to having served the 3rd respondent only as such I find that the same does not constitute proper service on all concerned parties. As it stands the parties were not properly served to appropriately respond to the said application and as such the same amounts to condemning them unheard. I find that it is only fair to give the applicants a right to be heard. This court sets aside the ruling delivered by this court on 6th April 2016. The applicant shall file and serve their replying affidavit to the application dated 9th February 2016 within 21 days from the date of this ruling. Meanwhile none of the parties shall dispose of or interfere with the assets of the deceased estate. This being a family matter there is no orders to costs. A date for the application to be taken in court.

It is so ordered.

Dated, signed and delivered this 12thday of July ,2017.

R. E. OUGO

JUDGE

In the presence of;

Absent For the Applicants

Mr. Mungla For the Respondent

MS. Charity Court Clerk