[2015] KEHC 191 (KLR)
The court found that the hearing date for the application was fixed by consent of both parties. On the scheduled date, neither the applicants nor their counsel appeared in court to prosecute the application, and no explanation for their absence was provided. The court held that in such circumstances, it had no...
Source-derived case information.
- Citation
- [2015] KEHC 191 (KLR)
- Parties
- Applicant: Evans Nyarango Osindi; Applicant: Justus Ongera Ombachi; Applicant: Justine Mochache Orina; Defendant: Monicah Bina Osindi; Respondent: Mokua Najua Ochenge
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 396 of 2014
- Procedural Posture
- Succession Cause / Ruling on Application for Eviction, Contempt, and Intermeddling
- Outcome
- Application dismissed for want of prosecution with costs to the respondent.
- Judges
- WA Okwany
- Legal Topics
- Succession, Probate and Administration, Intermeddling With Estate, Contempt of Court, Eviction From Estate Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Nyarango Osindi
Applicant
Justus Ongera Ombachi
Applicant
Justine Mochache Orina
Applicant
Monicah Bina Osindi
Defendant
Mokua Najua Ochenge
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Eviction, Contempt, and Intermeddling
Legal Issues
- 1 Whether the respondent should be evicted from LR. No. WEST MUGIRANGO/BOSAMARO WEST/17.
- 2 Whether the respondent is in contempt of a court order.
- 3 Whether the respondent has intermeddled with the deceased's property.
Ratio Decidendi
The court found that the hearing date for the application was fixed by consent of both parties. On the scheduled date, neither the applicants nor their counsel appeared in court to prosecute the application, and no explanation for their absence was provided. The court held that in such circumstances, it had no option but to dismiss the application for want of prosecution. The application dated 26th November 2014 was therefore dismissed with costs to the respondent.
Court Disposition
Application dismissed for want of prosecution with costs to the respondent.
Orders
- The application dated 26th November 2014 is dismissed for want of prosecution.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
SUCCESSION CAUSE NO.396 OF 2014
IN THE MATTER OF THE ESTATE OF IBRAHIM OSINDI ONDARI (DECEASED)
AND
EVANS NYARANGO OSINDI - 1ST CITOR/APPLICANT
JUSTUS ONGERA OMBACHI - 2ND CITOR/APPLICANT
JUSTINE MOCHACHE ORINA - 3RD CITOR/APPLICANT
VERSUS
MONICAH BINA OSINDI - CITEE
AND
MOKUA NAJUA OCHENGE - RESPONDENT
RULING
By an application dated 26th November 2014 filed under certificate of urgency on 28th November, 2014, the Applicant sought orders for inter alia; the eviction of the Respondent from LR. No. WEST MUGIRANGO/BOSAMARO WEST/17; the sentencing of the Respondent for disobedience of a court order and a finding that the Respondent had intermeddled with the deceased’s property.
The Applicant’s application was brought under Section 45and47 of the Law of Succession ActandRules 49 and 73of theProbate and Administration Rules.
The Respondent opposed the Applicant’s said application through his replying affidavit dated 19th January 2015 in which he denied among other things, being in contempt of a court order or having intermeddled with the estate of the deceased. The Respondent further stated that he had a stake in the suit property as a bona fide purchaser.
The applicant’s said application was on 11th June 2015, by consent, fixed for hearing on 23rd September 2015. On the said hearing date, neither the Applicant, nor his counsel on record appeared in court to prosecute the said application leading to the counsel for the Respondent’s plea for the dismissal of the same with costs to the Respondent.
This court is satisfied that indeed, the date for the hearing of the applicant’s application dated 26th November 2014 was taken by consent.
The absence of the Applicant and his counsel during the said hearing without any explanation leaves this court with no option but to dismiss it for want of prosecution.
Consequently, the application dated 26th November 2014 is hereby dismissed with costs to the Respondent.
Dated, signed and delivered in open court this 11th day of December, 2015
HON. W. OKWANY
JUDGE
In the presence of:
N/A for Applicant
Nyatundo holding brief for Ayienda for Respondent
Omwoyo: court clerk