In re Estate of Wilson Mwamba Nyamogo (Deceased) [2022] KEHC 14164 (KLR)

In re Estate of Wilson Mwamba Nyamogo (Deceased) (Succession Cause 2217 of 2004) [2022] KEHC 14164 (KLR) (Family) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14164 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2217 of 2004

AO Muchelule, J

October 19, 2022

Ruling

1. The deceased Wilson Mwamba Nyamongo died intestate on 21st January 1989. On 21st January 2004 his son Naftal Ogwokia Mwamba (the respondent) petitioned for the grant of letters of administration intestate. The grant was issued to him on 20th September 2004. It has not been confirmed.

2. The properties indicated to belong to the deceased were Eastleigh Section III Plot No. 171, Laitigo Settlement Scheme Plot No. 8, Nyabisia In-Bassi-Loc. Plot No. 461 and Riyabo In-Bassi-Loc Plot No.

3. The applicant Joseph Philip Nyamongo Nyangami states that he is the son of the late Josiah Nyangami Mwamba who was the deceased’s son. In the application dated 9th September 2009 he sought the revocation of the grant under sections 47 and 76 of the Law of Succession Act (Cap. 160) on the basis that he was not consulted or his consent sought when the petition was filed and grant issued, and that he was a joint owner or interested party of the properties Plot No. 171 at Eastleigh Section III, Nairobi and Plot No. 8 at Laitigo Settlement Scheme.

4. The respondent filed a replying affidavit to oppose the application. He denied that the applicant’s late father (his brother) was the owner of the parcels, or that he had any interest in them. He did not deny that he had not sought the applicant’s consent when petitioning for the grant or obtaining the grant. He stated that he was obliged to seek the consent of the deceased’s living children, which he did; that the applicant was a grandchild of the deceased whose consent was not necessary.

5. When the application came for hearing on 16th May 2018 the applicant’s counsel was absent, and therefore it was dismissed for want of prosecution. The advocate’s counsel states that he was absent because the clerk misdiarised the matter. On 5th June 2018 the cause was ordered closed on the basis that notice of closure was served but that no action had been taken. It is deponed that no such notice was served. Indeed, the court record has no such notice.

6. The present application dated 21st January 2020 seeks to set aside and/or review the orders of 5th June 2018 and 5th June 2018 (not 30th May 2017 as shown in the application) dismissing the above application and closing the cause, so that the application can be set down for hearing. This application was not opposed although served. The delay to bring the application was occasioned by the file having gone missing for a long time, it was deponed.

7. This is an old matter, and one does not know why the respondent has not cared to have the grant issued to him confirmed, and the estate distributed to the beneficiaries.

8. In my determination, the reasons behind the dismissal of the application dated 9th September 2009 have been explained to my satisfaction. The closure of the cause was done without notice. Consequently, I review and set aside the orders of 16th May 2018 and 5th June 2018. The cause is reinstated, and the application dated 9th September 2009 is reinstated.

9. The application dated 9th September 2009 shall be heard on 6th February 2023. The applicant shall within 30 days’ file and serve written submissions. On service, the respondent shall file and serve written submissions within 30 days.

10. Cots shall follow the event.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 19TH DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE