[2023] KEHC 26447 (KLR)

Tito v Ngigi (Succession Cause 2647 of 2011) [2023] KEHC 26447 (KLR) (Family) (15 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26447 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2647 of 2011

SN Riechi, J

December 15, 2023

Between

Grace Gichira Tito

Applicant

and

Godfrey Waweru Ngigi

Respondent

Ruling

1. This matter relates to the estate of John Waweru Kungu who died intestate on 3rd November 1986. The applicant Grace Gichira Tito has moved this court vide an application dated 25th AUGUST 2021 seeking for orders that:i.The honourable court do set aside orders by Hon.Lady Justice M. Muigai on the 5th June 2018 dismissing the applicant’s cause for want of prosecution and thereafter re-instate the succession cause.ii.That upon granting prayer 1,pending the hearing and determination of this application before this honourable court be pleased to issue an interlocutory order of injunction restraining the defendants/respondents whether by themselves servants or agents from advertising or offering for sale,disposing of selling property by private treaty or public auction or interfering with the property known as Karai/Karai/686iii.That upon granting prayer 1,pending the hearing and determination of this succession cause before this honourable court be pleased to issue an interlocutory order of injunction restraining the defendants/respondents whether by themselves servants or agents from advertising or offering for sale,disposing of selling property by private treaty or public auction or interfering with the property known as Karai/Karai/686

2. The application is grounded on the reasons set out on the face of it and supported by a sworn affidavit dated 25th August 2021 by Grace Gichira Tito.

3. It is the applicant’s case that she is a daughter to the deceased John Waweru Kungu hence a beneficiary of the deceased estate. That she wish to revoke the grant issued to her late brother David Ngige Waweru. She depones that her and her sister Lucy Njeri appointed the firm of Gititu Wangoo & Company Advocates to file an application to revoke the Grant. She depones further that when the application came up for hearing the file was not presented for hearing and their advocate on record at the time did not follow up with the same and ultimately the matter was never heard and determined by the court. She depones that they were never given a notice of dismissal and they are now willing to prosecute this cause.

4. The applicant depones that she recently conducted a search and discovered that the respondent has registered to be a proprietor of the estate subject property. She attached a copy of certificate of official search in support. She depones that she is now apprehensive that her brother’s family may sub-divide and distribute the said property at any time and deny them their rightful inheritance.

5. The respondent opposed the application and filed his replying affidavit sworn on 7th February 2022 by Godfrey Waweru Ngigi. He avers that the applicant’s application relates to succession cause number 2647 of 2011 in respect to the estate of John Waweru Kanu which the respondent is a stranger to and their father was never part of. The respondent avers that succession cause of John Waweru Kanu was instituted under succession number 120 of 1992 and not succession cause number 2647 as alleged by the applicant.

6. The respondent avers further that the applicant is seeking to challenge the grant issued to their father David Ngigi Waweru on 4th June 1993 at Kiambu Succession Cause No.120 of 1992. He attached a copy of the grant in support. The respondent avers that the proceedings in the said cause were concluded without objection and their father left behind one property known as Karai/Karai/686. The respondent depones that the applicant is seeking to challenge a Grant issued 30 years ago to their father.

7. He depones further that the applicant seeks reinstatement of an application for revocation of the said grant filed on 29th November 2011 and dismissed for lack of prosecution on 5th June,2018 which is more than seven years ago. He depones that allowing the said application will be prejudicial to the respondent.

8. By consent of parties this application was argued by way of written submissions. The applicant filed written submission dated 13th July 2022 and respondent filed written submissions dated 21st November 2022.

9. The applicant is her submission reiterated averments in her affidavit and she briefly submitted further that the delay in prosecuting this matter was inadvertent and due to error on Applicant’s advocate and same mistake should not be visited on the applicant. She relied on Article 47 and 50 of the Constitution of Kenya and case law decision in the case of Re Estate of David Wang’ang’a Gichuhi(Deceased)[2020]eKLR and CMC Holdings Limited v Nzioki[2004]1 KLR 173 in support.

10. The applicant submitted that the purpose for reinstatement and injunction is to ensure that the applicant and the family receive their share of their father’s estate. The applicant submitted that the applicant stands to suffer irreparable loss if the temporary injunction is not granted.

11. The Respondent on his part submitted that the applicant is seeking reinstatement of application filed 11 years ago to challenge grant legally issued to the respondent’s father David Ngige Waweru 30 years ago. He submitted that the excuse proffered by the applicant for inordinate delay in prosecuting the suit is neither plausible nor sufficient.

12. The respondent submitted on whether the applicant has met threshold for issuance of an injunction that applicant have not demonstrated a prima facie case deserving the orders sought.

13. I have analyzed the application, affidavits and submissions by parties and the main issues for determination are;

i. Whether the applicant’s application dated 29th November 2011 should be reinstated. 14. Order 17 Rule 2(1) which governs dismissal of suits for want of prosecution, provides as follows:“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its dissatisfaction, may dismiss the suit.’’

15. Notably, every person is entitled as envisaged under Article 50 of the Constitution of Kenya to have a fair trial. The said article provides that:“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.’’

16. It therefore follows that every person ought not to be shut out from accessing court or having his day in court. To exercise the power of dismissal for want of prosecution under Order 17 is a matter that is within the discretion of the court. In its decision in Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium v M.D. Popat and others & Another [2016] eKLR ,the court stated as follows:“Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable and is likely to cause serious prejudice to the defendant on account of that delay.

17. Under Order 17 Rule (2) (1), the court or a party can issue a notice where a matter has been inactive for over a year. In regard to the case at hand, the suit is ripe for dismissal given that it has taken over 10 years since it was filed. But on the other hand, the mistake of advocate should be revisited against a litigant. This court has to weigh the cost and prejudice a respondent would suffer if the suit is reinstated.

18. The respondent herein has not presented to this court any harm he would suffer if at all the succession cause 2647 0f 2011 herein were to be reinstated. I do hereby reinstate the applicant’s application dated 29th November 2011,set aside the order of dismissal/closure of suit made on 5. 6.2018 and direct the suit be reinstated and set for hearing.

DATED AT NAIROBI THIS 15TH DAY OF DECEMBER 2023. S. N. RIECHIJUDGE