[2014] KEHC 3504 (KLR)
The court found that although the Applicants had a history of filing and withdrawing applications, the substantive issues between the parties had not yet been determined. Therefore, it was premature to make an order for costs against the Applicants at this stage. The court exercised its discretion to make no order...
Source-derived case information.
- Citation
- [2014] KEHC 3504 (KLR)
- Parties
- Applicant: Cornelius Kimani; Applicant: Ann Wanjiku; Applicant: Emily Wamaitha; Applicant: Veronica Wairimu; Respondent: Margaret Waitherero
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 915 of 1999
- Procedural Posture
- Succession Cause / Ruling on Costs After Withdrawal of Application
- Outcome
- Application withdrawn with no order as to costs.
- Judges
- LK Kimaru
- Legal Topics
- Succession, Reasonable Provision, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cornelius Kimani
Applicant
Ann Wanjiku
Applicant
Emily Wamaitha
Applicant
Veronica Wairimu
Applicant
Margaret Waitherero
Respondent
Procedural Posture
Succession Cause / Ruling on Costs After Withdrawal of Application
Legal Issues
- 1 Whether the Applicants should pay the costs of the withdrawn application.
- 2 Whether costs should be paid by the Applicants personally or out of the estate.
Ratio Decidendi
The court found that although the Applicants had a history of filing and withdrawing applications, the substantive issues between the parties had not yet been determined. Therefore, it was premature to make an order for costs against the Applicants at this stage. The court exercised its discretion to make no order as to costs for the withdrawn application, holding that the issue of costs should await the determination of the substantive dispute.
Court Disposition
Application withdrawn with no order as to costs.
Orders
- The application dated 8th September 2005 stands withdrawn with no orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO.915 OF 1999
IN THE MATTER OF THE ESTATE OF THE LATE HERMAN GACHUHI GATIRI – (DECEASED)
CORNELIUS KIMANI....................................................................................1ST APPLICANT
ANN WANJIKU...........................................................................................2ND APPLICANT
EMILY WAMAITHA.......................................................................................3RD APPLICANT
VERONICA WAIRIMU..................................................................................4TH APPLICANT
VERSUS
MARGARET WAITHERERO.............................................................................RESPONDENT
RULING
On 8th September 2005, Cornelius Kimani moved the court by summons under Section 26 of the Law of Succession Act seeking orders from the court for reasonable provision to be made to each of the Applicants out of the net estate of the deceased before the grant is confirmed. The application was opposed. The Respondent filed a replying affidavit in opposition to the application. When the application came up for hearing before Njagi J on 30th October 2012, the Applicants informed the court they had withdrawn the application in a letter to the court dated 19th July 2012. Mr. Ng’ang’a for the Respondent insisted that the Applicants pay the costs of the withdrawn application to the Respondent. This was in light of the fact that the Applicants had a penchant for filing and withdrawing applications. Learned counsel for the Respondent interpreted this behaviour by the Applicants to amount to vexation of the Respondent. Miss Wambua for the Applicants was of the view that the costs of the application should be paid out of the estate of the deceased. That was the issue that was to be determined by Njagi J before he ceased having jurisdiction in the Family Division.
When counsel for the parties appeared before this court on 13th May 2013, they requested the court to make a Ruling on the basis of the proceedings taken before Njagi J. The issue for determination by this court is therefore whether the Applicants should pay the costs of the Respondent for the withdrawn application. Having perused the record of the court, it was apparent to this court that the Applicants have filed several applications which have not been prosecuted. However, a determination is yet to be made in regard to the matters in dispute between the Applicants and the Respondent. This court is of the view that the issue as to whether the Applicants should pay the costs of the withdrawn application shall await the determination of the substantive issues by the court.
In the premises therefore, this court holds that the application dated 8th September 2005 stands withdrawn with no orders as to costs. It is so ordered.
DATED AT NAIROBI THIS 25TH DAY OF JULY, 2014.
L. KIMARU
JUDGE