In re Estate of Joseph Omolo Angienda (Deceased) [2023] KEHC 25676 (KLR)

In re Estate of Joseph Omolo Angienda (Deceased) (Succession Cause 271 of 2012) [2023] KEHC 25676 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25676 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Cause 271 of 2012

RE Aburili, J

November 17, 2023

IN THE MATTER OF THE ESTATE OF JOSEPH OMOLO ANGIENDA – DECEASED AND IN THE MATTER OF AN APPLICATION BY TOM ODHIAMBO OMOLO - PETITIONER

Ruling

1. This Petition was filed on 21st June 2012. The grant was issued to Tom Odhiambo Omolo to administer the estate of the late Joseph Omolo Angienda on 10th October 2012. The Petitioner never filed any summons for confirmation of the grant and on 30th November 2026, this court revoked the grant under Section 76 (d) (i) of the Law of Succession Act as no action or steps had been taken to have the grant confirmed.

2. From 30th November 2016, the Petitioner is now before court seeking to set aside that revocation order.

3. I have heard the Petitioner who claims that he was ignorant of the requirement for confirmation of grant issued to him and that he only learnt of the requirement when his brothers wanted shares of their land and so he visited the lands office and he was advised to get a confirmed grant only for him to come to court and find that the grant was revoked on 30th November 2016 hence this application.

4. Setting aside or reinstatement of proceedings is in the discretion of the court. However, that discretion must be exercised judiciously and not capriciously. The issue of delay is key here and albeit the applicant claims that he was ignorant of the process, whoever processed for him the pleadings must have told him of the end result as the law is clear that a grant unless confirmed cannot be used to transfer any property of the estate of the deceased person.

5. In addition, ignorance of the law is no defence and a party who obtains a grant and fails to have it confirmed by applying by summons, the court is at liberty to revoke or annul that grant on the lapse of one year.

6. As we speak, 11 years have lapsed since the grant was issued without any attempt to have it confirmed and again, from 30th November 2016 when it was revoked, the applicant has taken seven years to approach the court to revive the revoked grant.

7. Article 159 of theConstitution abhors delay. It specifically states that justice shall not be delayed. Delay defeats equity.

8. To try to resuscitate the revoked grant is tantamount to trying to resuscitate a dead person eleven (11) years down the line. This grant died in 2013 which is one year after it was issued and it has been buried since. It is incapable of revival.

9. I decline the application for setting aside the revocation order and I proceed to dismiss the application as filed and argued.

10. The applicant is however at liberty to use the orders of 30th November 2016 revoking the grant and this ruling declining to set aside the revocation order for purposes of petitioning for a fresh grant.

11. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023. R. E. ABURILIJUDGE