In re Estate of Kimani Muhoro (Deceased) (Succession Cause E1025 of 2021 & E1215 of 2022 (Consolidated)) [2022] KEHC 15879 (KLR) (Family) (18 November 2022) (Ruling)

Key Facts

Deceased Name

Issues

• The Applicant argued that the court's decision to hear the Respondents' application for revocation of the grant (dated 19th August 2021) alongside the Applicant's application (24th May 2021) rendered her separate application to strike out the Respondents' applications (23rd September 2021) moot. The court found this claim a 'mere afterthought' and dismissed it, noting the Applicant's counsel had ample opportunity to address the issue but failed to do so.
• The court addressed whether it had the authority to arrest its ruling on the Respondents' applications under sections 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, given the Applicant's counsel's failure to comply with court directions to file a reply and submissions. The court emphasized that inherent jurisdiction to arrest a ruling must be exercised sparingly and only to prevent injustice, not to aid a party whose conduct in proceedings is deficient.
• The court examined its inherent jurisdiction under the Law of Succession Act and Probate and Administration Rules to manage proceedings and prevent abuse of process. It concluded that inherent powers could not excuse the Applicant's counsel's non-compliance with court orders and that the Applicant's request to defer the ruling was a delaying tactic. However, the court allowed the Applicant to file her reply and submissions within seven days to ensure due process.

Date of Death

Holdings

• In the interest of justice, the court directed the Applicant to file and serve her Reply to the application dated 19th August 2021 and submissions within seven days, with a mention set for 25th November 2021 for a fresh ruling date.
• The court dismissed the Applicant's summons dated 6th July 2022 seeking to defer the ruling on the Objectors' applications, finding no reasonable cause for the deferral and deeming it a delaying tactic.

Remedies

• The court dismissed the Applicant's application to defer the ruling, finding no merit in the request.
• The Applicant was ordered to file a Reply to the 19th August 2021 application and submissions within seven days.
• The court ruled that the costs of the dismissed application would be borne by the Applicant.

Will Type

Probate Status

Legal Principles

• The court applied the principle of natural justice, noting that parties must be given a reasonable opportunity to be heard. It found the applicant had been granted such opportunities but failed to utilize them, rendering their subsequent claims of denial of hearing without merit.
• The court emphasized its inherent power to make orders necessary for the ends of justice or to prevent abuse of its process, as affirmed by section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules. This power was invoked to address procedural irregularities in the case.

Succession Regime

Precedent Name

• Gateway Insurance Company Limited v Jimmy Kiamba, Treasurer Nairobi County Government & 2 others
• Rev Madara Evans Okanga Dondo vs Housing Finance Company of Kenya
• In the Matter of the Estate of George M'mboroki
• Union Insurance Co. of Kenya Ltd vs Ramzan Abdul Dhanji

Executor Name

Cited Statute

• Law of Succession Act
• Probate and Administration Rules

Executor Appointment

Judge Name

Passage Text

• "I find that the Applicant was accorded an opportunity to be heard... The Applicant was granted opportunity and time to file a reply to the application dated 19th August 2021 and submissions thereto but failed to utilize the opportunity given. Failure to comply with the courts directions cannot be blamed on the court or on opposing counsel."
• "Accordingly, it is my view that in appropriate cases, the Court is entitled to arrest the delivery of a decision in order to do justice if circumstances warrant it. However, that is a jurisdiction which cannot be exercised in a superficial and casual manner. Arresting a judgement and any judicial process for that matter is a power which ought not to be exercised lightly...... Therefore whereas the powers to arrest the decision may be invoked, it is a power which 'ought to be invoked very sparingly and in exceptional circumstances' and not to assist a person who is intent upon abusing the process of the Court." (Own emphasis)
• "All in all, I find that no reasonable, sufficient and/or justifiable cause has been advanced for the deferral of the court's ruling. This was just a delaying tactic to enable the Applicant put her house in order. I find no merit in the summons dated 6th July 2022. The same is hereby dismissed in its entirety."

Beneficiary Classes

• Child / Issue
• Spouse / Civil Partner