[2014] KEHC 2462 (KLR)
The court held that the notice for confirmation of grant must be extracted and served exactly as ordered by the court, specifically providing a 60-day period for compliance, not the 15 days unilaterally imposed by the Objector's counsel. The court emphasized that the legal consequences of such notices are...
Source-derived case information.
- Citation
- [2014] KEHC 2462 (KLR)
- Parties
- Applicant: Raphael Oriacha; Applicant: Basil Afwago; Respondent: John Benard Wanzala
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 266 of 2010
- Procedural Posture
- Succession Cause / Ruling on Extraction and Service of Notice for Confirmation of Grant
- Outcome
- Notice to apply for confirmation of grant must be properly extracted and served afresh in accordance with the court's original order.
- Legal Topics
- Succession Procedure, Confirmation of Grant, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Oriacha
Applicant
Basil Afwago
Applicant
John Benard Wanzala
Respondent
Procedural Posture
Succession Cause / Ruling on Extraction and Service of Notice for Confirmation of Grant
Legal Issues
- 1 Whether the notice for confirmation of grant was properly extracted and served in accordance with the court's order.
- 2 Whether the Objector's counsel was entitled to shorten the notice period from 60 days to 15 days contrary to the court's directive.
Ratio Decidendi
The court held that the notice for confirmation of grant must be extracted and served exactly as ordered by the court, specifically providing a 60-day period for compliance, not the 15 days unilaterally imposed by the Objector's counsel. The court emphasized that the legal consequences of such notices are significant, and any deviation from the court's explicit directive undermines the administration of justice and the rights of the parties. The court ordered that the notice be properly extracted and served afresh, with the 60-day period running from the date of proper service. The court further warned against attempts by litigants to alter or shorten court-ordered timelines, underscoring...
Court Disposition
Notice to apply for confirmation of grant must be properly extracted and served afresh in accordance with the court's original order.
Orders
- The notice for confirmation of grant shall be properly extracted and served again.
- The notice period shall be 60 days from the date of service, as originally ordered by the court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
SUCCESSION CAUSE NO.266 OF 2010
IN THE MATTER OF THE ESTATE OF OJIAMBO MUSEBE-DECEASED
RAPHAEL ORIACHA ………………..………………………1ST APPLICANT
BASIL AFWAGO ……………………………………………2ND APPLICANT
JOHN BENARD WANZALA ……....……………………....….RESPONDENT
R U L I N G
1. On 20th February 2014 I made the following order:-
“Court: Grant herein was made to the Petitioner on 30th March 2011. It is more than 1 year since. I hereby give the Petitioner 60 days Notice to apply for confirmation hereof (Section 73 of The Law of Succession Act.) Both he and his advocate shall be served with the notice by the Objectors Counsel.”
2. Counsel for the Objector chose to extract a different order, in the following terms:-
“TAKE NOTICE that pursuant to the power conferred by section 73 and 76 (a) (i) of the Law of Succession Act, this court proposes, subject to such representations as may ne(sic) made to the contrary to revoke the grant of representation of the estate of the above named OJIAMBO MUSEBE made on 30th March, 2011 to RAPHAEL ORIACHA, and BASIL OFWAGO,
THE GROUNDS for the proposed action are:-
1. The grant was made on 30th March, 2011 over 3 years ago and Petitioners have not applied for confirmation of the grant.
If you wish to oppose such proposed revocation you may do so by filing within 15 days from this date an affidavit herein stating the grounds of opposition.
Issued at Busia this 27th day of February 2014
DEPUTY REGISTRAR
THE HIGH COURT OF KENYA AT BUSIA
3. I have to insist that the order I granted be faithfully extracted and served afresh. The insistence is borne out of the legal implications that follow such a Notice. The provisions of Section 76 d (i) of The Law of Succession Act gives power to this Court to revoke grant where a person to whom grant has been made has failed, “after due Notice and without reasonable cause… to apply for confirmation of the grant within one year from the date thereof, or such longer period as the Court has ordered or allowed.” The implications, no doubt, are dire. This Court issued a 60 day notice and not 15days as indicated in the Notice extracted by the Objector. Such an important notice cannot be shortened by warrant of a cheeky or careless litigant!
4. The Notice shall be properly extracted and served again. The Notice period shall run from the date of service.
F. TUIYOTT
J U D G E
DATED, DELIVERED AND SIGNED AT BUSIA THIS 9TH DAY OF OCTOBER 2014.
IN THE PRESENCE OF:
KADENYI ………………………………………………COURT CLERK
N/A…………………………………...………………FOR PETITIONER
JUMBA……………………………….………………FOR PROTESTOR