John Musyoka Musembi v David Muema Musembi [2015] KEHC 4094 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 609 OF 2008

IN THE MATTER OF THE ESTATE OF NASON MUSEMBI MUSOMBA (DECEASED)

JOHN MUSYOKA MUSEMBI………………………..PETITIONER

VERSUS

DAVID MUEMA MUSEMBI……………OBJECTOR/APPLICANT

R U L I N G

A grant of letters of administration in respect of the Estate of Nason Musembi Musomawas issued to John Musyoka Musembion the 8th December, 2008and confirmed on 14th May, 2010. On the 4th July, 2012 David Muema Musembi (Objector/Applicant)filed an application seeking revocation and/or annulment of the grant.

On the 24th October, 2012the Petitioner filed a Notice of Preliminary Objection on grounds that the application for summons for revocation of the grant was incompetent, bad in law and resjudicata in view of a similar application dated 3rd August, 2011 having been filed and subsequent proceedings dated 19th June, 2012 having taken place as well as the Applicant’s letter to court filed on 27th February, 2012; and that the proceedings ought to be stayed in view of proceedings in Civil Suit No. 141 of 2011and the Court of Appeal Civil Appeal No. 95 of 2012.

The contention of the Applicant is that the application dated 4th July, 2012is similar to the one dated 3rd August, 2011 which was not heard because the Applicant (David Muema Musembi) and two (2) others wrote to the court disowning the application.  They sought to withdraw from the matter following an allegation that they had withdrawn instructions from the firm of B. M. Mung’ata and Company Advocates.

The Objector/Applicant in particular wrote a letter to the court withdrawing instructions from B. M. Mung’ata and Company Advocates. When the application dated 3rd August, 2011came up for hearing, Asike Makhandia J. (As he then was) who was presiding over the matter on the 19th June, 2012, acted on the letters and held thus:

“From the letters, it appears that the application dated 3rd August, 2011 was filed without their instructions.  It is accordingly struck out with no orders as to costs as parties are siblings.”

The learned Judge reached the decision having taken cognizant of the letters that formed part of the record and having given counsel, Mr. Mung’ata, an opportunity to respond who stated thus:

“I leave it to court.”

The order of the court was dated 19th June, 2012. On the 4th July, 2012 the firm of B. M. Mung’ata & Companydescribing themselves as Advocates for the Petitioner/Applicant filed the application for revocation and/or annulment of the grant.

The application was however in respect of David Muema Musembiwho was described as the Objector/Applicant.  The Judge stated that as long as the letters were on record, Mr. Mung’atacould not act in the matter.  To-date the letters have not been withdrawn.

It is therefore apparent that the firm of B. M. Mungata and Company filed the application without authority.  The same cannot stand.  Accordingly, the Preliminary Objection is upheld.  Consequently, the application dated 4th July, 2012is struck out with costs to the Petitioner/Respondents.

It is so ordered.

DATED, SIGNEDand DELIVERED at MACHAKOS this 16THday of JUNE, 2015.

L. N. MUTENDE

JUDGE