1. The applicant (who may, or may not be alive), was presumed to be dead on 10th June 2010 in Mombasa High Court Misc. Application No 10 of 2020 (OS). Succession proceedings were commenced in Succession Cause No. of 2013; In re Estate of Mashashi Kitano (deceased). The grant was issued in respect of the said estate on 2nd May 2013, which grant was confirmed on 8th December 2014.
2. Long after the grant was issued it was alleged that the Applicant is not dead and that the orders issued by this Court were erroneous. This was done in the proceedings before the Environment and Land Court in Malindi and the Land Registrar, Lamu County.
3. Vide Notice of Motion dated 9th February 2024 sought to have the file in respect of Succession Cause No 70 of 2013 reconstructed, on the ground that it was missing. On 7th May 2024 I allowed prayers 1 and 2 of the Notice of Motion dated 9th February 2024. On 1st July, 2024 I directed that the Notice of Motion dated 9th February 2024 and the Summons for Revocation of Grant would be heard physically in open Court on 3rd October 2024. I did so, for a number of reasons, chiefly that since the status of the applicant was in issue, trial would be easier if it was established whether or not he is alive. I issued the said orders in the presence of the applicant’s counsel. Despite being present and aware of my said orders he did not object.
4. On 18th July 2024 the applicant filed the instant application seeking to have this Court vacate its orders, directing the physical attendance of the applicant, during the hearing of the Summons of Revocation of Grant, on 3rd October 2024, and that the applicant be allowed to attend court virtually. The grounds upon which the application was based are that the applicant is an elderly and sickly man and that requiring him to travel from Japan to Kenya would greatly affect his health. Further that his existence had been confirmed by M. Odeny, J of Malindi Environment and Land Court and also by the Land Registrar. It was urged that requiring the applicant to come to Kenya for hearing would be unjust and contrary to the vision of the Chief Justice, in her vision for Social Transformation Through Access to Justice.
5. The applicant attached to his application an affidavit sworn before a notary public in Japan, what was stated to be identification documents and an affidavit of a Japanese national who deposed that Mashashi Kitano is alive. He also attached photographs.
6. The applicant’s counsel, Firdaus Jamal Advocates, filed written submissions dated 27th August 2024 in support of the application.
7. I have considered the application. I note that the respondent did not file a response to it. That notwithstanding, I must consider the application on merit and only allow it if it would be in the interest of justice to do so.
8. Given the nature of this matter, and bearing in mind that the applicant was presumed dead on 10th June 2010, it is necessary that the Court ascertains facts for itself. That will only be possible if the person claiming to be the applicant comes to court and is subjected to cross examination by the respondent’s counsels. The court will also be able to scrutinize his documents and ascertain if the applicant is who he claims to be.
9. In Ground 1 of the grounds in support of the application it has been alleged that the applicant appeared physically before the Land Registrar and that the said Land Registrar confirmed that he is alive. Unfortunately, I haven’t seen evidence of the confirmation, nor have I seen anything allegedly made by Odeny, J in Malindi. Even if it were true that the person claiming to be the applicant appeared before the Land Registrar, why was it possible for him to attend a meeting before him when it is impossible to come to court in Mombasa?
10. Although the alleged applicant is said to be elderly, that in itself cannot prevent him from travelling. No particulars of his ill health were provided.
11. In the circumstances, the application dated 18th July 2024 is dismissed with no orders as to costs.
12. The hearing on 3rd October 2024 will, therefore, proceed as scheduled in open Court.
13. Orders accordingly.
Dated and signed at Mombasa this 20th day of September 2024. Delivered virtually via Microsoft TEAMS.
2. Long after the grant was issued it was alleged that the Applicant is not dead and that the orders issued by this Court were erroneous. This was done in the proceedings before the Environment and Land Court in Malindi and the Land Registrar, Lamu County.
3. Vide Notice of Motion dated 9th February 2024 sought to have the file in respect of Succession Cause No 70 of 2013 reconstructed, on the ground that it was missing. On 7th May 2024 I allowed prayers 1 and 2 of the Notice of Motion dated 9th February 2024. On 1st July, 2024 I directed that the Notice of Motion dated 9th February 2024 and the Summons for Revocation of Grant would be heard physically in open Court on 3rd October 2024. I did so, for a number of reasons, chiefly that since the status of the applicant was in issue, trial would be easier if it was established whether or not he is alive. I issued the said orders in the presence of the applicant’s counsel. Despite being present and aware of my said orders he did not object.
4. On 18th July 2024 the applicant filed the instant application seeking to have this Court vacate its orders, directing the physical attendance of the applicant, during the hearing of the Summons of Revocation of Grant, on 3rd October 2024, and that the applicant be allowed to attend court virtually. The grounds upon which the application was based are that the applicant is an elderly and sickly man and that requiring him to travel from Japan to Kenya would greatly affect his health. Further that his existence had been confirmed by M. Odeny, J of Malindi Environment and Land Court and also by the Land Registrar. It was urged that requiring the applicant to come to Kenya for hearing would be unjust and contrary to the vision of the Chief Justice, in her vision for Social Transformation Through Access to Justice.
5. The applicant attached to his application an affidavit sworn before a notary public in Japan, what was stated to be identification documents and an affidavit of a Japanese national who deposed that Mashashi Kitano is alive. He also attached photographs.
6. The applicant’s counsel, Firdaus Jamal Advocates, filed written submissions dated 27th August 2024 in support of the application.
7. I have considered the application. I note that the respondent did not file a response to it. That notwithstanding, I must consider the application on merit and only allow it if it would be in the interest of justice to do so.
8. Given the nature of this matter, and bearing in mind that the applicant was presumed dead on 10th June 2010, it is necessary that the Court ascertains facts for itself. That will only be possible if the person claiming to be the applicant comes to court and is subjected to cross examination by the respondent’s counsels. The court will also be able to scrutinize his documents and ascertain if the applicant is who he claims to be.
9. In Ground 1 of the grounds in support of the application it has been alleged that the applicant appeared physically before the Land Registrar and that the said Land Registrar confirmed that he is alive. Unfortunately, I haven’t seen evidence of the confirmation, nor have I seen anything allegedly made by Odeny, J in Malindi. Even if it were true that the person claiming to be the applicant appeared before the Land Registrar, why was it possible for him to attend a meeting before him when it is impossible to come to court in Mombasa?
10. Although the alleged applicant is said to be elderly, that in itself cannot prevent him from travelling. No particulars of his ill health were provided.
11. In the circumstances, the application dated 18th July 2024 is dismissed with no orders as to costs.
12. The hearing on 3rd October 2024 will, therefore, proceed as scheduled in open Court.
13. Orders accordingly.
Dated and signed at Mombasa this 20th day of September 2024. Delivered virtually via Microsoft TEAMS.