In Re Matter of Henry Kaguta Gathua – Deceased [2014] KEHC 5510 (KLR) | Revocation Of Grant | Esheria

In Re Matter of Henry Kaguta Gathua – Deceased [2014] KEHC 5510 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1374 OF 2012

AND

IN THE MATTER OF HENRY KAGUTA GATHUA – DECEASED

RULING

1.  The application dated 22nd June 2012 is for revocation of the grant made in Kiambu Senior Resident Magistrate’s Court Succession Cause No. 697 of 1995 on 5th February 1996 and confirmed on 17th May 1996 and for the upholding of Thika Chief Magistrate’s Court Succession Cause No. 245 of 2009.

2.  There were directions on 22nd October 2012 and 7th May 2013 that the application be served on the administrator in Kiambu Senior Resident Magistrate’s Court Succession Cause No. 697 of 1995, Regina Muthoni Kibocha.  The order of 7th May 2013 required substituted service via advertisement in the Daily Nation.

3.  The applicants have filed an affidavit of service sworn on 3rd June 2013 by their advocate, Sammy Kariuki Muturi, confirming that an advertisement was placed in the Daily Nation of 21st May 2013, a copy there of is annexed to the said affidavit and marked as “SKM 1”.

4.  The application was not replied to by the respondent.  This was not surprising, given that the said respondent was dead as at the time of the publication of the notice on 21st May 2013.  What is surprising is that the applicants would put up the notice when they knew that she was dead and therefore not in a position to respond.  Margaret Muthoni Gathua avers at paragraph 13 of her affidavit sworn 22nd June 2012 that she had reliably  learnt that the respondent had died.  So, if that was the case who did they expect would respond to the application?  What was the purpose of the service of 21st May 2013?

5.  Given the foregoing, it would be imprudent to determine the application dated 22nd June 2012 without involving the children of the deceased, that is to say – Alice Wangui Kaguta, Joseph Njenga Kaguta, Esther Waceke Kaguta, Paul Kirimi Kaguta, James Karwera Kaguta and Mary Wanjohi Kaguta.

6.  I hereby direct the applicants to the application dated 22nd June 2012 to serve the said application on the individuals named in paragraph 5 above.  Directions shall be given on the determination of the application after the said persons have been served.

DATED, SIGNED and DELIVERED at NAIROBI this 25th DAY OF April, 2014.

W. MUSYOKA

JUDGE

In the presence of Mr. Odhiambo for Mr. Githuru advocate for the applicants.