In re Estate Nandasaba alias Julis Wafula Mabusi alias Jairus Wafula - Deceased (Succession Cause E010 of 2025) [2026] KEHC 8508 (KLR) (17 June 2026) (Ruling)

In re Estate Nandasaba alias Julis Wafula Mabusi alias Jairus Wafula - Deceased (Succession Cause E010 of 2025) [2026] KEHC 8508 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 8508 (KLR) Republic of Kenya In the High Court at Kitale Succession Cause E010 of 2025 RK Limo, J June 17, 2026 (Formerly Kitale MCSUCC NO.E020 OF 2022) IN THE MATTER OF THE ESTATE OF JULIUS MABUSI NANDASABA alias JULIS WAFULA MABUSI alias JAIRUS WAFULA –DECEASED Between Samuel Julius Munialo Applicant and Mathews Simiyu Mabusio Respondent Ruling 1.Samuel Julius Munialo, the applicant herein has moved this court vide summons dated 25/2/2026 for the following orders;i.Spentii.That the application dated 8/1/2026 dismissed on 11/2/2026 for non-attendance of counsel be reinstatediii.That costs be in cause. 2.The applicant in his application has raised the following grounds namely;a.That the absence of counsel on 11/2/2026 was not deliberate as he was attending to a matter at Environment and Land Court at the material time.b.That at the time the counsel joined the session this court was dealing with the application dated 29/10/2025 having already dealt with the application dated 8/1/2026.c.That the applicant had not arrived in court when the matter was called out.d.That the respondent will not be prejudiced in any way.e.That it is in the interest of justice to have the subject application reinstated. 3.In his supporting affidavit sworn on 25/2/2026, Mr Kiarie advocate depones that the application dated 8/1/2026 was listed for mention on 11/2/2026 but on that date he had 3 cases before Environment and Land Court and has exhibited a copy of the cause list from that court that day to support his assertion. 4.That this matter was listed as No.5 in the cause list and because the Environment and Land Court used to start at 8.30am he hoped to clear with that court before attending to this court. That he managed to come to this court at 9.15am and found the court in session having dealt with the application dated 8/1/2026 and handling the application dated 29/10/2025. 5.That he was duly informed that his application had already been dismissed. 6.That the short delay was occasioned by the matters at Environment and Land Court. 7.That the dismissed application should be reinstated. 8.The applicant Samuel Julius Munialo has sworn a further supporting affidavit sworn on 25/2/2026 stating that on 11/2/2026 he passed through his counsel’s offices before heading to court. 9.That the matter was called out before he arrived in court. 10.That he together with 6 other beneficiaries are opposed to the mode of distribution and that they had filed their preferred mode vide application dated 8/1/2026. 11.He prays for a chance to make his representation. 12.The applicant through written submissions dated 15/5/2026 through counsel has invoked the discretion of this court contending that the principles guiding the exercise of discretion are now well settled. 13.He submits that the absence of counsel in court on 11/2/2026 has been well explained by the fact that evidence showing he was in another court and Environment and Land Court for that matter, has been availed in this application. 14.He contends that the explanation given for the delay is true and that the absence in court was not deliberate. 15.He further submits that unless the application dated 8/1/2026 is reinstated he together with other beneficiaries would suffer great prejudice. 16.The applicant relies on the following decisions;a.Shah –vs- Mbogo (1967) CA 116, where the court held that court should exercise discretion to avoid injustice resulting from inadvertence.b.Patel –vs- E.A Cargo Handling Ltd (1974( EA 116 where the court leaned towards hearing matters on merit.c.CMC Holdings –vs- Nzioka (2009) eKLR andd.Richard Ncharpi Leiyagu –vs- IEBC & 2 Others (2014)eKLR where the court emphasized that the right to be heard is a fundamental right and that courts should be slow in driving litigants from the seat of justice without hearing them on merit. 17.The respondent, Mathews Simiyu Mabusi has opposed this application through a replying affidavit sworn on 28/4/2026. 18.The respondent avers that the applicant is out to cause unnecessary delays in this matter. 19.He contends that the applicant has not been diligent in this matter and has given a history of this cause leading to the application dated 8/1/2026. 20.The respondent avers that this application is an afterthought and the reasons given for non-attendance of court are vague. 21.That he stands to suffer great prejudice if the application for reinstatement is allowed because he has been proceeding diligently with the administration of the estate as an administrator. 22.He avers that the respondent has been exclusively utilizing part of the estate namely L.R No.7998-Nabiswa Farm to the detriment of their sisters. 23.That the applicant has not demonstrated the prejudice he would suffer if the dismissed application dated 8/1/2026 is not reinstated. 24.He concedes that the applicant is only motivated by greed because the estate has been distributed equally among all the beneficiaries. 25.The respondent has further opposed this application through submissions dated 19/5/2026 done through learned counsel M/s Bikundo & Co advocate. 26.The respondent contends that a party should be bound by his pleadings and that the applicant has only prayed for reinstatement of the application dated 8/1/2026 but has not prayed for setting aside of dismissal order. He contends that the jurisdiction of this court has not been invoked properly because there is a dismissal order which remains undisturbed. According to the respondent this court is functus officio and lacks jurisdiction to entertain the application dated 8/1/2026. 27.He further submits that the reasons advanced to explain non-attendance are insufficient because the counsel knew that the matter was slated for 11/2/2026 and failed to send a counsel to hold his brief if he was held up in Environment and Land Court. 28.He points out that the applicant himself has not given any reason why he was absent from court. 29.He further points out that Mr Kiarie has not stated if he was in Environment and Land Court physically or virtually and that no evidence of the same has been availed in that regard. 30.He faults the applicant for failing to be candid and contends that the reasons given are half-truths with gaps which in his view shows that the applicant is undeserving of this court’s discretion. 31.He further faults the applicant for 14 days delay in filing this application stating that no explanation has been given for the delay. 32.He submits that the applicant has not demonstrated that he has an arguable case to merit reinstatement and that the applicant has not been vigilant. 33.This court has set out both the applicant’s case and the opposition by the respondent. The application before me is seeking for reinstatement of the application dated 8/1/2026 which application was dismissed for want of prosecution on 11/2/2026. 34.Reinstatement of an application or a suit is dependent on reasons advanced for reinstatement and the discretion of the court. The exercise of the discretion is always guided by the following principles;a.Existence of sufficient explanation for non-attendance.b.Good cause that is existence of an arguable case.c.Interest of justice.d.A prejudice to the other side or opposing side. 35.This court is also well guided by the Constitutional principle under Article 159(2)(d) of the Constitution in determination of whether the applicant has properly moved this court by not asking for setting aside of dismissal order and only seeking for reinstatement. In my considered view the applicant is seeking for a chance to be heard in his application dated 8/1/2026 which application was dismissed for non-attendance and not on merit. The contention by the respondent that the applicant should have first sought for setting aside of dismissal order before seeking reinstatement in my view is a question of semantics and not the substance. 36.The main issue for me in this application is whether the applicant has given plausible explanation to explain his absence. 37.In this matter the applicant’s counsel has stated on oath that he got late on 11/2/2026 when the application dated 8/1/2026 was slated for mention for directions. This court has looked at the record of proceedings and finds that on 19/1/2026 this court gave directions upon an application under certificate being placed upon it that the application dated 8/1/2026 though not certified urgent was to be mentioned on 11/2/2026 for further orders and/or directions. On the 11/2/2026, the applicant and his counsel were absent and only Mr Bikundo for the respondent was present. In view of lack of anyone to prosecute the application, this court was moved to dismiss the application for want of prosecution which was done. 38.The record shows that a few minutes even before the ink of the pen writing the dismissal order had dried, Mr Kiarie joined the session and he was notified that his client’s application had been dismissed and the court was then dealing with the respondent’s application dated 29/10/2025. Mr Kiarie complained of non-service of the application and this court directed the applicant to serve and fix the matter for mention on 14/5/2026. 39.The applicant subsequently moved this court with the instant application. 40.As observed above the applicant has invoked the discretionary powers of this court. The said powers are exercised in order to prevent injustice rather than aiding indolence and/or parties who for lack of diligence are only out to buy time and delay the course of justice as held in the celebrated case of Shah –vs- Mbogo (1967) E.A 116. 41.This court finds that contrary to the contention by the respondent, the applicant in this instance has demonstrated good faith and sufficient cause to warrant this court exercise discretion in his favour. The exercise of discretion is meant to meet the ends of justice and is unfettered by technicalities. It is guided by the need to give parties a fair chance to ventilate their cases so that matters are determined on the merits. 42.This court finds the objection raised by the respondent is majorly hinged on technicalities. However I find that one issue raised which I consider pertinent is the need to dispose of the substantive dispute in the cause with a view to bringing this matter to an end in light of allegations that applicant is occupying and utilizing more than the other beneficiaries and for that reason he is out to cause delays.This court while allowing this application dated 25/2/2026 on merit hereby directs that the matter be sped up for purposes of disposal of the cause in its entirety. I will condemn the applicant to pay costs because of the failure of his counsel to get someone to hold his brief on 11/2/2026 thus causing this instant application. For avoidance of doubt the dismissal order made on 11/2/2026 is set aside and the application dated 8/1/2026 is reinstated and will be fixed for a hearing upon delivery of this ruling. DELIVERED, DATED AND SIGNED AT KITALE THIS 17TH DAY OF JUNE , 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofMr Kiarie for the applicantMr Bikundo for the respondentDuke/Chemosop – court assistants