1. The substantive prayer in the applicants Notice of Motion dated 19th February 2025 seeks that the orders dismissing this Succession Cause dated 27th May 2023 be set aside and the cause be reinstated to give the applicant’s summons for revocation of grant dated 28th July 2012 which fell by the way side when the cause was dismissed an opportunity to be heard on merit.
2. The application is premised on grounds stated on its face which are replicated in the depositions made in the supporting affidavit sworn by the applicant on 20th February 2025. Briefly, the applicant contends that the delay in prosecuting his summons for revocation of grant was not deliberate or intentional but was caused by failure of his erstwhile advocate to update him on the status of the matter after the succession cause was transferred from the Nyeri High Court to the Murang’a High Court; that he honestly believed that his advocate was taking steps to progress hearing of the summons and was waiting to be summoned to attend court to testify.
3. The applicant further averred that in the year 2024, he discovered that his advocate had passed on and this is when he engaged his current advocates who on perusing the court file learnt that the entire cause had been dismissed on 27th January 2023; that he was not aware that the cause was at any time listed for dismissal as he was not served with a notice to show cause; that if the cause was not reinstated, he would suffer great prejudice together with other beneficiaries of the Estate and it was in the interest of justice that the application be allowed.
4. The application is contested by the respondent, Mr. Henry Magwa Kihunyu, the administrator of the deceased’s Estate. He filed a replying affidavit sworn on 2nd April 2025. In a nutshell, the respondent challenged the application on grounds that it lacked merit and amounted to an abuse of the court process as, in his view, it was filed solely to deny him fruits of the orders issued by the court in his favour; that the applicant had failed to offer any reasonable or justifiable explanation for the delay of over two years in filing the application; that the applicant’s advocate was served with a notice to show cause on 9th December 2025 but he chose to ignore the said notice. He urged the court to dismiss the application for lack of merit
5. In addition to the replying affidavit, the respondent filed a Notice of Motion dated 21st October 2025 seeking dismissal of the instant application on grounds that it had been overtaken by events as the Estate property had been sold and transferred to a 3rd party and was no longer part of the deceased’s Estate; that if the orders sought were granted, they will cause hardship and prejudice to innocent third parties.
6. The application was prosecuted by way of written submissions which both parties duly filed and which I have carefully considered. In my view, the only issue that arises for my determination is whether the application dated 19th February 2025 was merited.
7. It is trite that whether or not to reinstate a suit which had been dismissed for want of prosecution depends on the discretion of the court taking into account the facts and circumstances of each case and the prejudice either of the parties was likely to suffer if the court reinstated or refused to reinstate the suit.
8. In the exercise of its discretion, the court is enjoined to consider the period of delay in question and the explanation offered for the delay. The test in determining whether the delay was reasonable and excusable or was inordinate and inexcusable was enunciated in the case of Ivita V Kyumbu (1975) eKLR in the following terms;
“ ....The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant, so, both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties notwithstanding the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time”.
9. In this case, the record shows that the respondent was issued with a grant of letters of administration to the Estate of late Alice Wairimu Kihunyu on 4th October 2010 and the same was confirmed on the same day. The applicant filed his summons for revocation of the grant on 27th July 2012 mainly on grounds that the grant was obtained through fraudulent misrepresentation and concealment of material facts.
The facts alleged to have been fraudulently misrepresented and concealed by the respondent in his petition for grant of letters of administration and in the summons for its confirmation were clearly and elaborately enumerated in the summons for revocation of the grant and the affidavit sworn in support thereof.
10. On 2nd January 2015 the court directed that the summons be prosecuted by way of viva voce evidence but for reasons which are on record, although the applicant’s counsel attended the court on subsequent hearing and mention dates, hearing had not taken off by the date the entire cause was dismissed on 27th January 2023.
11. From the court record, it is evident that there was a delay of about two years from the date the suit was dismissed and the date the instant application was filed. The applicant has explained this delay by blaming his late advocate for failing to keep him updated on progress of his application. He explained that it was not until the demise of his previous advocate and engagement of the current advocates that he discovered that the succession cause together with his application had been dismissed.
12. Considering the explanation advanced by the applicant for the above delay, I am not entirely convinced that the explanation is satisfactory given that the applicant being the litigant here owned his application and ought to have followed up with his advocate or the court registry to find out the status or progress towards hearing of his application.
13. However, upon scrutinizing the summons for revocation of grant, I note that some of the grounds anchoring the summons include serious allegations of fraudulent misrepresentation of facts to the effect that the respondent was the only heir to the Estate yet there were other beneficiaries who were the respondent’s siblings whose existence was not disclosed to the court. It was also alleged that the deceased had written a will bequeathing the entire Estate to her daughter Phyllis Njeri Maina who was the applicant’s late mother; that therefore, the cause ought to have proceeded as a testate as opposed to an intestate succession. It is noteworthy that the deceased’s alleged will is annexed to the applicants supporting affidavit.
14. In my considered view, given the above serious and weighty allegations among others, I find that if I decline to allow the application, the applicant and the alleged other beneficiaries were likely to suffer grave prejudice as they would be exposed to the risk of being disinherited without having their claims heard on merit. If on the other hand the application was allowed, both parties will have an opportunity to ventilate their different positions and have the court finally determine whether or not the grant was lawfully obtained and confirmed.
15. Regarding the respondent’s submissions that the application had been overtaken by events as the Estate property had already been distributed and sold to a third party and there was therefore nothing to reinstate, I am not persuaded that the sale of the Estate property to a 3rd party extinguished the applicant’s right to have his grievances heard by this court particularly when he alleges that the grant pursuant to which the property was distributed and sold was unlawful as it was fraudulently obtained.
16. The fact that the said third party is not yet a party to these proceedings as correctly observed by the respondent does not by itself mean that the 3rd party will automatically suffer prejudice if the application was allowed because nothing stops the court from ordering his or her enjoinment to the proceedings whether upon application or on its own motion before the summons proceeds for hearing if the application was allowed. In any event, Section 93(1) of the Law of Succession Act which provides that a transfer of immovable or movable property by a holder of a grant to a purchaser remains valid notwithstanding any subsequent revocation or variation of a grant protects the third party’s interests.
17. Flowing from the foregoing, I am persuaded to find that the prejudice likely to be suffered by the applicant if denied an opportunity to prosecute his application far outweighs any prejudice which may be occasioned to the respondent if the application was allowed.
18. Having taken all relevant facts into account, I am satisfied that the dictates of substantive justice requires that the application be allowed. Consequently, I find merit in the application and it is hereby allowed as prayed. Given the age of the summons, in order to expedite its hearing, I direct that mention or hearing dates be fixed on a priority basis.
19. On costs, although as a general rule costs follow the event, they are awarded at the discretion of the court. Given that the applicant
substantially contributed to the delay that resulted to dismissal of the cause which necessitated filing of the instant application, the respondent is awarded costs of the application
20. It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 29th day of April 2026.
2. The application is premised on grounds stated on its face which are replicated in the depositions made in the supporting affidavit sworn by the applicant on 20th February 2025. Briefly, the applicant contends that the delay in prosecuting his summons for revocation of grant was not deliberate or intentional but was caused by failure of his erstwhile advocate to update him on the status of the matter after the succession cause was transferred from the Nyeri High Court to the Murang’a High Court; that he honestly believed that his advocate was taking steps to progress hearing of the summons and was waiting to be summoned to attend court to testify.
3. The applicant further averred that in the year 2024, he discovered that his advocate had passed on and this is when he engaged his current advocates who on perusing the court file learnt that the entire cause had been dismissed on 27th January 2023; that he was not aware that the cause was at any time listed for dismissal as he was not served with a notice to show cause; that if the cause was not reinstated, he would suffer great prejudice together with other beneficiaries of the Estate and it was in the interest of justice that the application be allowed.
4. The application is contested by the respondent, Mr. Henry Magwa Kihunyu, the administrator of the deceased’s Estate. He filed a replying affidavit sworn on 2nd April 2025. In a nutshell, the respondent challenged the application on grounds that it lacked merit and amounted to an abuse of the court process as, in his view, it was filed solely to deny him fruits of the orders issued by the court in his favour; that the applicant had failed to offer any reasonable or justifiable explanation for the delay of over two years in filing the application; that the applicant’s advocate was served with a notice to show cause on 9th December 2025 but he chose to ignore the said notice. He urged the court to dismiss the application for lack of merit
5. In addition to the replying affidavit, the respondent filed a Notice of Motion dated 21st October 2025 seeking dismissal of the instant application on grounds that it had been overtaken by events as the Estate property had been sold and transferred to a 3rd party and was no longer part of the deceased’s Estate; that if the orders sought were granted, they will cause hardship and prejudice to innocent third parties.
6. The application was prosecuted by way of written submissions which both parties duly filed and which I have carefully considered. In my view, the only issue that arises for my determination is whether the application dated 19th February 2025 was merited.
7. It is trite that whether or not to reinstate a suit which had been dismissed for want of prosecution depends on the discretion of the court taking into account the facts and circumstances of each case and the prejudice either of the parties was likely to suffer if the court reinstated or refused to reinstate the suit.
8. In the exercise of its discretion, the court is enjoined to consider the period of delay in question and the explanation offered for the delay. The test in determining whether the delay was reasonable and excusable or was inordinate and inexcusable was enunciated in the case of Ivita V Kyumbu (1975) eKLR in the following terms;
“ ....The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and defendant, so, both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties notwithstanding the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time”.
9. In this case, the record shows that the respondent was issued with a grant of letters of administration to the Estate of late Alice Wairimu Kihunyu on 4th October 2010 and the same was confirmed on the same day. The applicant filed his summons for revocation of the grant on 27th July 2012 mainly on grounds that the grant was obtained through fraudulent misrepresentation and concealment of material facts.
The facts alleged to have been fraudulently misrepresented and concealed by the respondent in his petition for grant of letters of administration and in the summons for its confirmation were clearly and elaborately enumerated in the summons for revocation of the grant and the affidavit sworn in support thereof.
10. On 2nd January 2015 the court directed that the summons be prosecuted by way of viva voce evidence but for reasons which are on record, although the applicant’s counsel attended the court on subsequent hearing and mention dates, hearing had not taken off by the date the entire cause was dismissed on 27th January 2023.
11. From the court record, it is evident that there was a delay of about two years from the date the suit was dismissed and the date the instant application was filed. The applicant has explained this delay by blaming his late advocate for failing to keep him updated on progress of his application. He explained that it was not until the demise of his previous advocate and engagement of the current advocates that he discovered that the succession cause together with his application had been dismissed.
12. Considering the explanation advanced by the applicant for the above delay, I am not entirely convinced that the explanation is satisfactory given that the applicant being the litigant here owned his application and ought to have followed up with his advocate or the court registry to find out the status or progress towards hearing of his application.
13. However, upon scrutinizing the summons for revocation of grant, I note that some of the grounds anchoring the summons include serious allegations of fraudulent misrepresentation of facts to the effect that the respondent was the only heir to the Estate yet there were other beneficiaries who were the respondent’s siblings whose existence was not disclosed to the court. It was also alleged that the deceased had written a will bequeathing the entire Estate to her daughter Phyllis Njeri Maina who was the applicant’s late mother; that therefore, the cause ought to have proceeded as a testate as opposed to an intestate succession. It is noteworthy that the deceased’s alleged will is annexed to the applicants supporting affidavit.
14. In my considered view, given the above serious and weighty allegations among others, I find that if I decline to allow the application, the applicant and the alleged other beneficiaries were likely to suffer grave prejudice as they would be exposed to the risk of being disinherited without having their claims heard on merit. If on the other hand the application was allowed, both parties will have an opportunity to ventilate their different positions and have the court finally determine whether or not the grant was lawfully obtained and confirmed.
15. Regarding the respondent’s submissions that the application had been overtaken by events as the Estate property had already been distributed and sold to a third party and there was therefore nothing to reinstate, I am not persuaded that the sale of the Estate property to a 3rd party extinguished the applicant’s right to have his grievances heard by this court particularly when he alleges that the grant pursuant to which the property was distributed and sold was unlawful as it was fraudulently obtained.
16. The fact that the said third party is not yet a party to these proceedings as correctly observed by the respondent does not by itself mean that the 3rd party will automatically suffer prejudice if the application was allowed because nothing stops the court from ordering his or her enjoinment to the proceedings whether upon application or on its own motion before the summons proceeds for hearing if the application was allowed. In any event, Section 93(1) of the Law of Succession Act which provides that a transfer of immovable or movable property by a holder of a grant to a purchaser remains valid notwithstanding any subsequent revocation or variation of a grant protects the third party’s interests.
17. Flowing from the foregoing, I am persuaded to find that the prejudice likely to be suffered by the applicant if denied an opportunity to prosecute his application far outweighs any prejudice which may be occasioned to the respondent if the application was allowed.
18. Having taken all relevant facts into account, I am satisfied that the dictates of substantive justice requires that the application be allowed. Consequently, I find merit in the application and it is hereby allowed as prayed. Given the age of the summons, in order to expedite its hearing, I direct that mention or hearing dates be fixed on a priority basis.
19. On costs, although as a general rule costs follow the event, they are awarded at the discretion of the court. Given that the applicant
substantially contributed to the delay that resulted to dismissal of the cause which necessitated filing of the instant application, the respondent is awarded costs of the application
20. It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 29th day of April 2026.