Case ID:171265

In re Estate of Cephas Kihanya Nathan (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 122 of 2015

Parties:

In re Estate of Cephas Kihanya Nathan (Deceased)

Date Delivered:

02 Mar 2021

Case Class:

Civil

Court:

High Court at Murang'a

Case Action:

Ruling

Judge(s):

Kanyi Kimondo

Citation:

In re Estate of Cephas Kihanya Nathan (Deceased) [2021] eKLR

Advocates:

Mr. Sausi for the objectors/applicants instructed by Ochoki & Ochoki Associates Advocates

Mr. Kang’iri holding brief for Mr. Koech for the administrator/respondent instructed by Harit Sheth Advocates

Court Division:

Family

Advocates:

Mr. Sausi for the objectors/applicants instructed by Ochoki & Ochoki Associates Advocates

Mr. Kang’iri holding brief for Mr. Koech for the administrator/respondent instructed by Harit Sheth Advocates

History Advocates:

Both Parties Represented

Case Outcome:

Chamber summons dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

SUCCESSION CAUSE NO. 122 OF 2015

RE ESTATE OF CEPHAS KIHANYA NATHAN (DECEASED)

STEPHEN NGONJO KIHANYA

SAMUEL NDIRANGU KIHANYA

JANE WANJIKU MUCHENE

JACINTA WANJIRU..........................................................................................APPLICANTS

VERSUS

IRENE WANJIRU KIHANYA...............................................PETITIONER/RESPONDENT

RULING

1. The preliminary issue is whether the firm of

Ochoki & Ochoki Associates

should be granted

leave

to come on the record for the four applicants.

2. The Notice of Motion is dated 26

th

July 2020 and predicated on a deposition sworn by Jane Wanjiru Muchene on 26

th

August 2020. There are additional prayers for

revocation

of the grant issued on 27

th

July 2015 and for an

account

of rent.

3. The motion is opposed through a replying affidavit sworn by Irene Wanjiru Kihanya on 11

th

September 2020.

4. In the interests of time, I directed learned counsel for the parties to first address the court on the question representation.

5. I have considered the rival submissions. The record shows that on 29

th

March 2019, the Court (

Waweru J

) rendered a decision intituled “Judgment”. The applicants thus take the view that their present counsel requires leave to come on the record after judgment. The respondent on the other hand opines that the decision of

Waweru J

was not a final decree but a preliminary finding.

6. I think the respondent is splitting hairs. What was before

Waweru J

was a summons for revocation of the grant dated 29

th

October 2015. In a considered judgment, he found that the respondent was the sole surviving spouse of the deceased and was entitled to administer the estate. The summons was

dismissed

. However, the court left open the question of

distribution

of the estate.

7. Whether the summons was dismissed by a ruling or judgment is mere tautology. I concur fully on that point with

Wanjiru Karanja J

(as she then was) in

Naomi Wanjiku Mwangi v Grace Njeri Thathi

,

High Court, Embu, Civil Case No. 87 of 2006 [2011] eKLR.

8. The point to be made is that the main issue for determination before

Waweru J

was whether the grant should have been revoked and the learned judge made a final finding on that issue. It was thus proper to title the determination as

judgment

notwithstanding that the question of distribution of the estate was left for further hearing.

9. Prior to that judgment, two of the applicants, Jacinta Wanjiru and Samuel Ndirangu, were represented by the firm of

Ransley McVicker Shaw Advocates

. By a notice of appointment dated 15

th

August 2019 the two other applicants, Jane Wanjiku Muchene and Stephen Ngonjo Kihanya, appointed the firm of

C.B. Keya Company

in the matter.

10. The firm of

Ochoki & Ochoki Associates

has not filed or served a notice of change of advocates on the two firms. Instead, the firm chose to move the court for leave to come on record after judgment.

11. From a close reading of Rules 8, 9, 60 and 63 of the

Probate and Administration Rules

, it remains doubtful that Order 9 of the

Civil Procedure Rules

on change of advocates after decree applies strictly in succession proceedings. I am also alive to the provisions of Article 159 of the

Constitution

which exhorts the court to do substantive justice to all the parties

12. Nevertheless, common sense, decency and good order dictate that the incoming lawyers should serve the lawyers of record with this type of motion. At the time of hearing the present motion, there was no evidence on the record of service upon the previous lawyers.

13. Until the firm of

Ochoki & Ochoki Associates

files a suitable notice of change of advocates with service on all their predecessors, the firm is

not

properly on the record. The present chamber summons praying for leave to come onto the record is redundant and is struck out with no orders on costs.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 2

nd

day of March 2021.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Mr. Sausi for the objectors/applicants instructed by Ochoki & Ochoki Associates Advocates.

Mr. Kang’iri holding brief for Mr. Koech for the administrator/respondent instructed by Harit Sheth Advocates.

Ms. Dorcas Waichuhi & Ms. Susan Waiganjo, Court Assistants.