[2008] KEHC 3644 (KLR)
The court found that the issue raised by the summons for revocation is substantive and should be accorded a hearing on its merits. While the court acknowledged the respondent's delay, it held that this did not justify dismissing the revocation application at this stage. The court emphasized that the right to be...
Source-derived case information.
- Citation
- [2008] KEHC 3644 (KLR)
- Parties
- Applicant: William Ngatia Ndirangu; Respondent: Mwangi Ngatia
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 137 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application to Dismiss Summons for Revocation
- Outcome
- Application dismissed; directions given for hearing of revocation summons.
- Judges
- MM Kasango
- Legal Topics
- Succession, Revocation of Grant, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Ngatia Ndirangu
Applicant
Mwangi Ngatia
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Dismiss Summons for Revocation
Legal Issues
- 1 Whether the summons for revocation of grant should be dismissed for lack of service on the petitioner.
- 2 Whether the matter should proceed to hearing on the merits of the revocation application.
Ratio Decidendi
The court found that the issue raised by the summons for revocation is substantive and should be accorded a hearing on its merits. While the court acknowledged the respondent's delay, it held that this did not justify dismissing the revocation application at this stage. The court emphasized that the right to be heard is fundamental and that the application for dismissal was premature. However, the court cautioned that continued delay by the respondent could justify future applications for dismissal. Accordingly, the court dismissed the applicant's summons and directed that the revocation application proceed to hearing by viva voce evidence.
Court Disposition
Application dismissed; directions given for hearing of revocation summons.
Orders
- The summons dated 16th November 2007 is hereby dismissed and the costs thereof shall be paid by Mwangi Ngatia to the Petitioner.
- The summons for revocation dated 18th March 2004 shall be heard by way of viva voce evidence at a date to be taken at the registry.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Succession Cause 137 of 2004
IN THE MATTER OF THE ESTATE OF NDIRANGU NGATIAaliasNDIRANGU NGATIA MUCHUNU
WILLIAM NGATIA NDIRANGU…………….PETITIONER/APPLICANT
versus
MWANGI NGATIA…….…………………..OBJECTOR/RESPONDENT
RULING
The Petitioner petitioned for Letters of Administration as the only son of the deceased at Nyahururu Magistrate’s Court. The grant was issued to him and was later confirmed. An application by way of summons for revocation was filed in this court by Mwangi Ngatia. That summons is dated 18th March 2004. The Petitioner has now moved this court through a summons dated 16th November 2007. By that summons he seeks the dismissal of the summons for revocation and for an order that the Nyahururu court file be returned for conclusion at that court. The petitioner stated in his affidavit that he had not been served with the summons for revocation. This he claimed was an attempt to deny him the right to defend himself. He concluded that the summons for revocation is meant to delay the finalization of the succession cause.
The application was opposed on behalf of Mwangi Ngatia. He stated that the summons was served on the Petitioner. He attributed the delay in fixing the matter with the delay of the Nyahururu court in forwarding their file. He prayed that the court would allow the hearing of the summons.
I have considered the argument before court and in the affidavit. I do accept that the issue raised by the summons for revocation is an issue that ought to be accorded a hearing. That however is not to mean the indolence of Mwangi Ngatia shall hence forth be ignored. I am of the view that the orders sought by the Petitioner should not be granted at this stage. This however does not mean that the Petitioner cannot again file such an application if there is continued delay by Ngatia. The orders that commend themselves to me are:
1. That the summons dated 16th November 2007 is hereby dismissed and the costs thereof shall be paid by Mwangi Ngatia to the Petitioner.
2. The court grants directions in respect of the summons for revocation dated 18th March 2004 that the same be heard by way of viva voce evidence at a date to be taken at the registry.
DATED AND DELIVERED THIS 27TH DAY OF FEBRUARY 2008.
MARY KASANGO
JUDGE