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JudgmentIn the Estate of KITELE MUTISYA KITUTO7 min read

In the Estate of KITELE MUTISYA KITUTO

High Court at Makueni High Court · · Matheka, Teresia Mumbua


  1. This matter started as High Court at Nairobi Succession Cause No. 2593 of 1996.
  2. By an order dated 21/6/2022 the matter was transferred to High Court of Kenya at Makueni and it became HC P&A E007 of 2022
  3. It was mentioned before the Deputy Registrar on 20/9/2022. The applicants were not present and were not represented. The Deputy Registrar fixed the matter for hearing on 7/12/2022 before the Judge. A hearing Notice was to issue.
  4. On the hearing date the applicants were not present and were not represented. The Respondents were present and their advocate asked for the application to be dismissed which application was allowed.
  5. That forms the basis for the application before me dated 13/6/2024 brought under sections 1A, 1B, 3A of the Civil Procedure Code and orders 12 Rule 17 of the Civil Procedure Rules, and Article 159(2) of the Constitution. The applicant seeks orders; -

  1. That the application be certified urgent and be heard ex-parte in the first instance.
  2. That pending the hearing of this application an order be made temporarily staying distribution or any further steps in execution of certificate of confirmation of grant given herein on 16th June 1999.
  3. That the respondent be restrained either by themselves, their agents and or servants from dealing alienating, selling and or dealing in any manner conceivable disposing of any of the assets of the deceased and particularly land parcel known as No. Machakos Konza North Block 1/267 until final determination of this summons for revocation of grant.
  4. That the letters of administration intestate made on 3rd April 1997 and confirmed on 16th June 1999 be revoked and annulled.
  5. The grounds for the application are found on its face and the affidavit sworn by Musyoki Kituto Kitile who describes himself as a grandson of the deceased, Kitele Mutisya Kituto. He depones inter alia;
      1. That the order of dismissal made on 7th day of December, 2022 was made through no fault or wrongdoing on his part but through the fault of the correspondent advocates instructed by its advocates on record.
      2. That the applicant became aware of the dismissal orders issued on 7/12/2023 upon perusal of the court file.
      3. That the delay occasioned herein is not so inordinate or so great as to be considered inexcusable.
      4. That it is the interest of justice that the orders are varied and set aside and the applicant is heard.

That all the steps taken (if any) by the said respondent pursuant to the said order granting the letters of administration and which may have changed the state of the subject matter of this application be set aside. That their advocate had left the country, relocated to South Africa without telling them. Their application dated 4/3/2021 was dismissed on 7/12/2022.That application dated 4/3/2021 was seeking the revocation of the grant made to the respondent – Daniel Mutuku Kitele on 3/4/1997 and confirmed on 16/6/1999 on the ground that the deceased had other beneficiaries other than the respondent.

  1. Annexed to the Summons for Revocation of Grant is a letter from the chief showing who these are beneficiaries were.
  2. The respondent had responded to the application vide replying affidavit to the effect that the deceased had sold the land. In the said response, the respondent also stated that his father the deceased had two wives and children contrary to the form P&A 5 where he stated that he was the sole surviving son of the deceased.
  3. In his further affidavit the respondent put the applicant to state proof of his allegations.
  4. Parties filed witness statements
  5. In opposition of this application – the respondent filed a replying affidavit where  he again concedes that the deceased had other beneficiaries  his own  brothers including the father of the applicant now deceased – one Michael Kitilo Kiele   (deceased 2017). It is his position that the deceased sold the land to him, and the applicant not being a direct beneficiary must prove that he was maintained by the deceased.
  6. That the applicant’s counsel was served with the hearing notice but never showed up; that counsel had not left the firm of Felix Momanyi who he deponed were still in practice.
  7. That the applicant had not established any of the principles set out in Giella vs Cassmen Brown (1973) E.A 358 – to warrant the injunctive orders sought.
  8. Counsel agreed to file written summons. They told the court that they had filed the submissions on CTS.
  9. I have checked CTS and only seen summons by the applicant.
  10. I have considered the submissions.
  11. The issue for determination is whether the application has merit.
  12. Order 12 Rule 7 of the Civil Procedure Rules states.  Setting aside judgment or dismissal

Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.

  1. This provision of the CPR gives the court the discretion to deal with an ex parte order or judgment. This power is discretionary and discretion must always be exercised judiciously and to enhance the end of justice. To this court was referred to CMC Holdings Ltd Vs Nzioki (2004) I KLR 173 that the discretion is to be exercised to ensure that a “litigant does not suffer injustice or hardship as a result of … excusable mistake or error” – and the litigant should not be driven out of the seat  of justice; John Nahashon Mwangi vs Kenya Finance Bank Ltd (in liquidation (2015) e KLR – that the court needs to consider what prejudice the defendant will suffer if the suit is reinstated; Gladys Njeri Kirugumi vs Lenana Devpt Co. Ltd & Another (2016) eKLR on the proposition that in exercising discretion that court must consider the @route of lesser risk of injustice”
  2. Before the matter was transferred from Nairobi all the parties were ready to proceed with the hearing. It is only upon the transfer of the matter to Makueni that the applicant failed to appear before the court on the first hearing. The circumstances under which the applicant failed to attend court sound credible from the explanation by the applicant – they did not appear in court – one time only. All through before that date , there is no evidence of deliberate delay ,.
  3. I have perused the summons for revocation of grant and the issue there is the determination the estate of the deceased and those who are beneficiary entitled. The record shows that the respondent came before this court as the sole beneficiary of the estate of the deceased – yet he too concedes that he was not the only child of his father. It appears as if the other children of the deceased did not participate in the proceedings hence the need to allow all those interested to put their case before the court to be heard on merit. It is my view that the respondent will not be prejudiced if this application is reinstated because the nature of succession proceedings is that the court is required to determine the estate of the deceased, the beneficiaries of the estate and their shares.
  4. The applicant did not get the opportunity to prosecute his application and it was only fair when they did not show up – for counsel for the respondent to seek to reach out to them so as to resolve the matter once and for all.
  5. I am in agreement with the respondent that injunctive orders may not be applicable – but the court has a duty to preserve the estate of the deceased pending the determination of the issues at hand. He concedes that the deceased had other beneficiaries – it is only fair to them that the estate remains available for distribution should the court find for the applicant.
  6. In addition, the respondent has raised the issue that his costs were never paid after the matter was dismissed, but the record is silent as to whether he ever pursued the same and the applicant, who was absent when the order was made, refused to pay. He cannot blame the applicant who was not present at the time of the dismissal.
  7. Hence it is my view that it is in the interests of justice that the following orders issue:

The application dated 4/3/2021 be and is hereby reinstated for hearing and determination on its merits. That the cost of this application be in the cause.

That respondent be and is hereby restrained either by himself his agents and or servants from dealing alienating, selling and or dealing in any manner conceivable disposing of any of the assets of the deceased and particularly land parcel known as No. Machakos Konza North Block 1/267 until final determination of this summons for revocation of grant

  1. . The parties are at liberty to go for Court annexed mediation which is available at Makueni Law Courts
  2. Each party to bear its own costs Dated, signed and delivered virtually on 28th June 2024


Mumbua T Matheka

Judge

Ms. Bwari for Ms. Muhia for applicant

Mr. Mutua for Respondent

Ms Nelima Court Assistant

Mr. Mutua; We seek hearing date in open court due to the advanced age of one of our witnesses who also has hearing problems and has challenges with virtual hearing:

Court: It is assumed that virtual hearings will make life easy for such vulnerable witnesses.

Court: At the request of counsel Hearing on the 3rd October 2024 in open court.

Mumbua T Matheka J

28th June 2024

NB paragraphing distorted by the system

    In the Estate of KITELE MUTISYA KITUTO In the Estate of KITELE MUTISYA KITUTO