Case ID:173700

In re Estate of Joseph Gitau Richo (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 673 of 1990

Parties:

In re Estate of Joseph Gitau Richo (Deceased)

Date Delivered:

19 Apr 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Aggrey Otsyula Muchelule

Citation:

In re Estate of Joseph Gitau Richo (Deceased) [2021] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Application 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 NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 673 OF 1990

GEOFFREY RICHU.....................................................APPLICANT

VERSUS

SAMUEL KINYANJUI........................................1

ST

RESPONDENT

EDWARD NDUNGU………………….….…….2

ND

RESPONDENT

PETER KIAMBUTHI.........................................3

RD

RESPONDENT

RULING

1. The application dated 2

nd

June 2017 by the respondents Samwel Kinyanjui, Edward Ndungu and Peter Kiambuthi against the applicant Geoffrey Richu sought the cancelation and nullification of the subdivisions in respect of Dagoretti/Kinoo/600. This was one of the land parcels owned by the deceased Joseph Gitau Richo who died intestate on 20

th

December 1985. The grant of letters of administration intestate was issued to the applicant on 7

th

August 1990 and confirmed on 15

th

November 1991. The parcel was supposed to be shared equally among the parties herein. The application was heard by Justice M.W. Muigai who granted prayers 2 and 3 on interim basis. She asked that the matter be heard

interpartes

. On 2

nd

December 2020 I asked the parties to take a date in the registry for the hearing of that application.

2. Instead, the applicant filed an application dated 10

th

December 2020 seeking to have the application dated 2

nd

June 2017 dismissed with costs for want of prosecution. This was on the grounds that the respondents had for over three years failed to set the application down for hearing; that the failure to set down the application for hearing was inordinate, inexcusable and an abuse of the process of the court; and that the dismissal would relieve the applicant of the burden of having the matter hanging around his neck.

3. The application was served but received no response.

4. Parties were in court on 2

nd

December 2020 when it was directed that–

“the parties should take a date at the registry for

interparte

hearing of the application.”

The application was a defended one. Instead of the applicant going to the registry to take a hearing date, he, in the same month, sought the dismissal of the matter for want of prosecution. I find that this was mischievous. Time begun to run on 2

nd

December 2020. It is not true that no action had been taken in three years.

5. A decision to dismiss a suit for want of prosecution should not be taken lightly. The application should show that the delay complained of was inordinate; that the delay was inexcusable; that the applicant will be prejudiced if the suit is not dismissed; and that sustaining the suit to have it determined on its own merits would not be a fair and just action in the circumstances

(Argan Wekesa Okumu –v- Dima College Limited & 2 Others ]2015]eKLR

.

6. I consider that the application dated 2

nd

June 2017 related to the serious matter concerning the distribution of the estate of the deceased. In the wider interests of justice, I direct that the application be heard on 9

th

June 2021. The application dated 10

th

December 2020 is dismissed, but the applicant will be paid costs.

DATED and DELIVERED NAIROBI this 19

TH

day of APRIL 2021.

A.O. MUCHELULE

JUDGE