[2005] KEHC 1611 (KLR)
The court found that the objector's counsel failed to comply with Rule 60 of the Probate and Administration Rules by not entering an appearance before filing the summons for revocation of grant. The subsequent filing of a notice of appointment of advocates did not cure the procedural defect, as the application had...
Source-derived case information.
- Citation
- [2005] KEHC 1611 (KLR)
- Parties
- Applicant: Wilfred Njogu Mbuthia; Respondent: Elizabeth Wairimu Thimba; Respondent: Kenneth Maitemei Thimba; Respondent: Teresa Wanjiru Thimba
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 81 of 2002
- Procedural Posture
- Succession Cause / Ruling on Application to Strike Out Objection Proceedings
- Outcome
- Objection proceedings struck out; costs awarded to petitioners.
- Legal Topics
- Probate and Administration, Revocation of Grant, Procedural Irregularity, Entry of Appearance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Njogu Mbuthia
Applicant
Elizabeth Wairimu Thimba
Respondent
Kenneth Maitemei Thimba
Respondent
Teresa Wanjiru Thimba
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Strike Out Objection Proceedings
Legal Issues
- 1 Whether objection proceedings filed by counsel before formal appointment are competent.
- 2 Whether the issue of impropriety of the objection proceedings is res judicata.
Ratio Decidendi
The court found that the objector's counsel failed to comply with Rule 60 of the Probate and Administration Rules by not entering an appearance before filing the summons for revocation of grant. The subsequent filing of a notice of appointment of advocates did not cure the procedural defect, as the application had already been filed prematurely. The court rejected the argument that the issue was res judicata, noting that no final decision had been made previously, as the matter was merely stood over generally to allow compliance. The proper course would have been to withdraw the defective application and file a new one after regularizing representation. As a result, the objection...
Court Disposition
Objection proceedings struck out; costs awarded to petitioners.
Orders
- Objection proceedings filed on 21st November, 2003 are struck out.
- Costs of the application are awarded to the petitioners.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE 81 OF 2002
IN THE MATTER OF THE ESTATE OF TERESIA WANJIRU WANG’ERA (DECEASED)
WILFRED NJOGU MBUTHIA…………...........………..………APPLICANT/OBJECTOR
VERSUS
ELIZABETH WAIRIMU THIMBA
KENNETH MAITEMEI THIMBA..….............….....RESPONDENTS/ADMINISTRATOR
TERESA WANJIRU THIMBA
RULING
The Petitioner filed an application by way of a Notice of Motion brought under Order III Rule 1 and Order L Rule 1 of the Civil Procedure Rules asking the court to strike out the objection proceedings herein.
The main ground in seeking the aforesaid order was that the objection proceedings were filed by the objector’s counsel before he was formally appointed. The petitioners stated that the objector’s counsel had not, either before or simultaneous with the filing of the objection proceedings filed any process to signify his entry on record on behalf of the objector.
The petitioners contended that the succession cause was of a civil nature and therefore the proceedings herein fell within the province of the Civil Procedure Act and Rules. They therefore submitted that the objection proceedings were incompetent.
The objector’s counsel opposed the said application and in his affidavit sworn on 7th February, 2005 deposed that the issue of impropriety of the application for revocation of the grant wasres judicata having been orally raised by Mr. Musangi advocate and canvassed and adjudicated upon by the Honourable Mr. Justice Muga Apondi on 3/3/2004.
He further stated that the application was misconceived and was based on misinterpretation of Order I of the Civil Procedure Rules and miscomprehension of the Succession Act and the rules made thereunder.
Rule 60 of Probate and Administration Rules states as follows:-
“Every interested person (whether or not he has been served with notice hereof) who wishes to be heard upon or to oppose any application, and has not already appeared in the proceedings, shall enter an appearance in form 26 in the registry in which the application is made giving his address for service, and may file such affidavits as he considers proper, to each of which the applicant may with leave of the court file an affidavit in reply.”
The aforesaid provision of the law is clear beyond any peradventure. The objector should have entered an appearance as in form 26 before taking any other step in the proceedings.
On 21st November, 2003 the objector through his advocate filed summons for revocation of grant but a notice of appointment of advocates was filed on 20th May, 2004. This was after the issue of omission in filing the same was raised in court by the petitioners’ advocate.
When that issue was raised before Hon. Justice Apondi, he ruled that before the objector’s counsel filed any application or addressed the court he should have satisfied that basic requirement. The court therefore stood over the matter generally to enable him file the necessary papers. Counsel did not however withdraw the summons for revocation of Grant which had been filed prematurely and in contravention to rule 60 aforesaid.
The objector’s counsel argued that the issue of impropriety of the said summons was res judicata, the same having been raised orally by the petitioners’ counsel, pursuant to which the matter was adjudicated by my brother. I do not think so. No final decision was made as the matter was stood over generally. It cannot be said that the issue was heard and finally decided. That is why the petitioners’ advocate filed a formal application to strike out the objection proceedings. In my view, the objector’s counsel, upon realising that he had jumped a vital procedural step, should have either withdrawn the application that was filed prematurely and file another one after coming on record properly or file an application to seek validation of the same.
I therefore strike out the objection proceedings filed on 21st November, 2003 and award the costs of the application to the petitioners.
DATED, SIGNED & DELIVERED at Nakuru this 10th day of February, 2005.
DANIEL MUSINGA
JUDGE
10/2/2005