Keli Kimilu & John Makau Kimilu v Simon Kaloki Kanyele [2015] KEHC 1932 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 752 OF 2011

IN THE MATTER OF THE ESTATE OF LUCIA MBITHE NZAU (DECEASED)

KELI KIMILU........1ST RESPONDENT

JOHN MAKAU KIMILU............2ND RESPONDENT

VERSUS

SIMON KALOKI KANYELE.............APPLICANT

RULING

1.       The application dated 3rd June, 2012 seeks orders that there be a stay of the implementation of the grant confirmed on 26th April, 2013 and that the said grant be annulled and/or revoked.

2.      According to the affidavit in support, the Applicant, Simon Kaloki Kanyele had filed a protest to the confirmation of the grant but the grant was confirmed before the protest was heard and without the Applicant’s knowledge.

3.      The Respondent did not file any papers in opposition to the application.

4.      Although directions were taken in the presence of both sides that the application be canvassed by way of written submissions, the Respondents did not file any. I have considered the application and the submissions filed by the Applicant.The Applicant has exhibited the copies of the affidavit in protest and the receipt issued upon filing of the same on 28th October, 2011. The confirmation of the grant on 26th April, 2013 was therefore irregular since there was a protest already on record.It is not denied that the Respondents were served with the protest.

5.      In the premises the application is allowed with costs.

B. THURANIRA JADEN

Dated and delivered at Machakos this 7th day of October,2015

B. THURANIRA JADEN

JUDGE