[2007] KEHC 1852 (KLR)
The court found that although the Deputy Registrar may not have had jurisdiction to dismiss the earlier application, the proper course for the applicant was to seek to set aside that dismissal and apply for reinstatement, rather than file a fresh application seeking the same orders. Filing a new application in these...
Source-derived case information.
- Citation
- [2007] KEHC 1852 (KLR)
- Parties
- Applicant: Alice Wangari Wairia; Respondent: Francis Muchiri Wairia
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 3 of 1999
- Procedural Posture
- Succession Cause / Ruling on Chamber Summons
- Outcome
- application struck out as abuse of process
- Legal Topics
- Abuse of Process, Reinstatement of Application, Jurisdiction of Deputy Registrar
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Wangari Wairia
Applicant
Francis Muchiri Wairia
Respondent
Procedural Posture
Succession Cause / Ruling on Chamber Summons
Legal Issues
- 1 Whether the applicant was entitled to file a fresh application seeking the same orders after the previous application was dismissed for non-attendance.
- 2 Whether the Deputy Registrar had jurisdiction to dismiss the earlier application.
- 3 Whether filing a fresh application instead of seeking reinstatement constitutes an abuse of court process.
Ratio Decidendi
The court found that although the Deputy Registrar may not have had jurisdiction to dismiss the earlier application, the proper course for the applicant was to seek to set aside that dismissal and apply for reinstatement, rather than file a fresh application seeking the same orders. Filing a new application in these circumstances constitutes an abuse of court process. The court exercised its inherent power to prevent such abuse and struck out the Chamber Summons dated 16th March 2007 with costs to the respondent.
Court Disposition
application struck out as abuse of process
Orders
- The Chamber Summons dated 16th March 2007 is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Succession Cause 3 of 1999
IN THE MATTER OF THE ESTATE OF WAIRA MUHURU…….DECEASED
AND
ALICE WANGARI WAIRIA ……………………..………………….PETITIONER
VERSUS
FRANCIS MUCHIRI WAIRIA……………..…………………………OBJECTOR
RULING
The plaintiff herein filed a Chamber Summons dated 16th march 2007 when the same came up for hearing counsel for the respondent opposed it on the basis that the applicant had made a previous application by way of Chamber Summons dated 8th October 2002 and which application prayed for exactly the same orders as the present one. In respect of that application of 8th of October 2002 the same came up for hearing before the Deputy Registrar of this court on 14th March 2007. The Deputy Registrar dismissed that application in view of the absence of the applicant’s counsel. I confirm that I have looked at both application and in-deed the prayers are the same. The applicant counsel in response to the respondents counsel stated that the dismissal by the Deputy Registrar was without jurisdiction since he had no jurisdiction to hear the application. I find that in as much as the Deputy Registrar did not have jurisdiction to hear that Chamber Summons dated 8th October 2002, the same was however dismissed. The applicant instead of setting aside that dismissal filed a fresh application seeking the same prayers. That in my view is an abuse of court processes and the court cannot allow such abuse. The applicant should have made an application to set aside the dismissal and to seek reinstatement of the application, instead of filing afresh application. The applicant’s argument is rejected and is found to be an abuse of court process. The court has inherent power to stop the abuse of it process. Accordingly the court does hereby strike out the Chamber Summons dated 16th march 2007 with costs to the respondent. Orders accordingly.
Dated and Delivered at Nyeri this 25th Day of May 2007
MARY KASANGO
JUDGE