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High CourtPartially AllowedSuccession Cause (Nairobi High Court) - application dated 12th June 2019 in the cause

In re Estate of Joseph Kitole Solai (Deceased) - Joyce Wambui Medukenya v Ann Naisula Kitole

High Court of Kenya
18 February 2020
AMA.O. Muchelule
1,630 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you miss a court date, you might still get a chance to defend your case if you show you intended to participate.

What this practically means

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Executive summary

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Joseph Kitole Solai died on 17th April 2013. On 23rd January 2014 Joyce Wambui Medukenya petitioned for probate with a written Will of 23rd May 2012 appointing her executrix and bequeathing her two Kajiado/Kaputiei-North properties; the grant issued the same day. On 15th July 2014 Ann Naisula Kitole moved to revoke the Will and grant, asserting the deceased was her father who died intestate, that the applicant was not his widow (having previously been married to Gideon Olorkinyoki Nareiyo, who died in 1993), and that the Will was a forgery. The applicant filed a 67-paragraph replying affidavit and written submissions. At the hearing on 13th February 2017 the applicant and her counsel, though served with a hearing notice, were absent; on 27th July 2017 the court allowed the revocation, nullified the Will as a forgery and revoked the grant, erroneously recording that no replying affidavit had been filed. The respondent then obtained letters of administration intestate in Kajiado Succession Cause No. 103 of 2017. The applicant applied on 12th June 2019 under Order 45 rule 1 and the Probate and Administration Rules for review of the ruling and stay of the Kajiado proceedings, explaining she only learnt of the ruling in July 2018. Muchelule J acknowledged the unexplained one-year delay but noted the applicant had demonstrably intended to defend, the estate remained unconfirmed, and the court itself had erred on the replying affidavit. He reviewed and set aside the proceedings and ruling, allowed the applicant to be heard in defence, and transferred the Kajiado cause to the High Court, holding no two succession causes should exist for one deceased. Costs of the application were awarded to the respondent, the applicant having been indulged.

Key legal issues

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01

Whether the default ruling should be set aside despite the applicant's delay

Holding

Application allowed; the ruling was reviewed and set aside because the applicant had filed a replying affidavit and submissions showing an intention to defend, and the estate remained unconfirmed so costs could compensate the respondent.

Reasoning

The court weighed the one-year unexplained delay against the merits: the applicant had demonstrably intended to defend (replying affidavit and written submissions), had no record of non-attendance, and the estate was intact so costs would compensate the respondent. The court also acknowledged its own error in stating no replying affidavit had been filed.

p. 2
02

Whether the court erred in finding no replying affidavit was filed

Holding

The court acknowledged it fell into error, since a replying affidavit raising substantial issues was on record.

Reasoning

The ruling of 27th July 2017 had stated the applicant had not filed a replying affidavit, yet a 67-paragraph replying affidavit sworn on 28th July 2014 was on record. The court treated this error as a factor supporting review.

p. 2
03

Whether parallel succession causes over one estate are permissible

Holding

No; the Kajiado cause filed while the Nairobi cause was pending was transferred to the High Court.

Reasoning

The respondent knew the Nairobi proceedings were ongoing when she petitioned in Kajiado; the court held that only one succession cause should exist per deceased and transferred the Kajiado cause for hearing and disposal with the Nairobi application.

p. 2

Legal principles established

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  • No two separate succession causes should be filed in respect of one deceased.
  • The court's discretion to set aside a default judgment is exercised judicially to do justice, and a regular judgment will not be set aside unless there is a defence on the merits raising triable issues.
  • Courts exist to decide the rights of parties, not to impose discipline.

Court orders

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  1. 1.The proceedings of 13th February 2017 and the ruling of 27th July 2017 are reviewed and set aside
  2. 2.The applicant to be heard in defence on the application dated and filed on 15th July 2014
  3. 3.Parties to be given a priority date at the registry for hearing of the application
  4. 4.Succession Cause No. 103 of 2017 at Kajiado Chief Magistrate's Court transferred to this court for hearing and disposal
  5. 5.Order to be served on the Chief Magistrate, Kajiado Law Courts
  6. 6.Costs of the application borne by the applicant
Jurisdiction invoked
Probate and Administration Rules (rules 49, 59(1), 67, 70, 73) and Order 45 rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Joseph Kitole Solai (Deceased) - Joyce Wambui Medukenya v Ann Naisula Kitole", Case Analysis (2020). Succession Cause (Nairobi High Court) - application dated 12th June 2019 in the cause. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.