[2013] KEHC 112 (KLR)
The court found that the applicant was not candid in her explanation for the delay and that her actions in obtaining limited letters of administration were calculated to mislead the court and establish artificial grounds for reviving the appeal. The court held that the applicant failed to demonstrate sufficient...
Source-derived case information.
- Citation
- [2013] KEHC 112 (KLR)
- Parties
- Applicant: Cecilia Wambui Githaiga; Respondent: Marion Gathoni Thitai
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 90 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Abatement and Revive Appeal
- Outcome
- application dismissed
- Legal Topics
- Abatement of Appeal, Revival of Appeal, Substitution of Parties, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Wambui Githaiga
Applicant
Marion Gathoni Thitai
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Abatement and Revive Appeal
Legal Issues
- 1 Whether the court should set aside its order declaring the appeal abated following the death of the appellant.
- 2 Whether the applicant provided sufficient cause for the delay in seeking substitution and revival of the appeal.
- 3 Whether the applicant's conduct in obtaining limited letters of administration was proper.
Ratio Decidendi
The court found that the applicant was not candid in her explanation for the delay and that her actions in obtaining limited letters of administration were calculated to mislead the court and establish artificial grounds for reviving the appeal. The court held that the applicant failed to demonstrate sufficient cause for the delay and declined to set aside the order of abatement or revive the appeal. The motion was dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The motion dated 29/11/2011 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL APPEAL NO. 90 OF 2001
RICHARD GITHAIGA MWANGI (DECEASED) SUBSTITUTED
BY CECILIA WAMBUI GITHAIGA..........................APPLICANT
VERSUS
MARION GATHONI THITAI..............................RESPONDENT
RULING
The subject matter of this ruling is the Notice of Motion dated 29/11/2011 in which Cecilia Wambui Githaiga, hereinafter referred to as the applicant sought for the following orders:
That the Honourable court be pleased to set aside and/or review its orders of 27/5/2011 and revive the Appeal which the Honourable court declared abated following the death of the Appellant.
That Cecilia Wambui Githaiga who was substituted in place of Richard Githaiga Mwangi in the Appeal on 17/11/2011 be allowed to prosecute the same.
That the costs of this application be provided for
The Motion is buttressed by the affidavit of the applicant. The Motion is opposed by Marion Gathoni Thitai, hereinafter to as the Respondent.
The record shows that on 27th May 2011, this court made order stating that since the appeal had abated upon the death of the appellant hence there was nothing to dismiss. The applicant has now come before this court seeking to have the aforesaid decision reviewed and set aside. This court is also urged to issue an order reviving the appeal. The applicant explained in detail the reasons for the delay. She stated that she was financially constrained after her husband (the appellant herein) passed on. She also explained that it took time to obtain letters of administration to succeed the deceased due to disagreements within the family. It is clear she managed to be appointed as the legal representative of Richard Githaiga Mwangi, deceased on 17/11/2011 and thereafter she moved with speed so that on 2nd December,2011 she managed to file the current motion. The Respondent in a lengthy affidavit urged this court to dismiss the Motion on the basis that the same lacks merit. She alleged that the applicant had failed to take up letters of administration until she was forced to cite her through citation proceedings. She claimed the Applicant had by 2007 been given temporary letters of administration in respect of the estate of her deceased husband. She stated that it was therefore untenable for her to further obtain limited letters of administration on 20/12/2010 yet she had already succeeded the deceased.
I have carefully considered the rival averments and it is clear in my mind that the applicant herein has not been candid to this court. It is obvious that he decided to apply for limited letters of administration in respect of the estate of the late Richard Githaiga Mwangi to establish a ground for the revival of the appeal. In my view, it was not an innocent act but it was calculated to hoodwink this court.
For the above reason, I decline to give order sought. The motion dated 29/11/2011 is dismissed with costs to the Respondent.
Dated, Signed and delivered this 16th day of December 2013.
J.K.SERGON
JUDGE
- In open Court in the presence of Mr. Kimunya holding brief for Ndegwa for Respondent.
- N/A for Nzioka for Applicant.