[2009] KEHC 2294 (KLR)
The court held that since the application dated 13th November 2001 had been withdrawn by consent of the parties and the withdrawal order had not been set aside, there was no valid application before the court for determination. Any attempt to prosecute a withdrawn application is an abuse of the court process. The...
Source-derived case information.
- Citation
- [2009] KEHC 2294 (KLR)
- Parties
- Petitioner: Phyllis Wanjiku Macharia; Petitioner: Gideon Mungai; Protester: Kezia Wanja Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 209 of 1994
- Procedural Posture
- Succession Cause / Ruling on Application for Confirmation of Grant and Protester's Withdrawn Application
- Outcome
- Application declined; no ruling on withdrawn application; each party to bear its own costs.
- Judges
- JW Gacheche
- Legal Topics
- Succession, Confirmation of Grant, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Phyllis Wanjiku Macharia
Petitioner
Gideon Mungai
Petitioner
Kezia Wanja Mwangi
Protester
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Grant and Protester's Withdrawn Application
Legal Issues
- 1 Whether the court can rule on an application that has already been withdrawn by consent of the parties.
- 2 Whether the prosecution of a withdrawn application constitutes an abuse of court process.
- 3 Who should bear the costs arising from the improper prosecution of a withdrawn application.
Ratio Decidendi
The court held that since the application dated 13th November 2001 had been withdrawn by consent of the parties and the withdrawal order had not been set aside, there was no valid application before the court for determination. Any attempt to prosecute a withdrawn application is an abuse of the court process. The court therefore declined to rule on a non-existent application and advised the protester to file a relevant application if she wished to protect her rights. The court further noted that both parties and their advocates must act with vigilance and consistency to avoid unnecessary complications and delays in succession proceedings. Each party was ordered to bear its own costs due...
Court Disposition
Application declined; no ruling on withdrawn application; each party to bear its own costs.
Orders
- The court declines to rule on the withdrawn application dated 13th November 2001.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Succession Cause 209 of 1994
IN THE MATTER OF THE ESTATE OF DANDSON MACHARIA MWANGI (DECEASED)
PHYLLIS WANJIKU MACHARIA …………..….……………….. 1ST PETITIONER
GIDEON MUNGAI ………………………………………………… 2ND PETITIONER
versus
KEZIA WANJA MWANGI ………..………………….………………… PROTESTER
RULING
When Mr. Karanja appeared before me on 14/10/2008, he proceeded to urge ‘an application’ dated 13. 11. 2001, on behalf of the protester, and he thereby made submission in support thereof.
‘The application’ was vehemently opposed by Mr. Gathara on behalf of the petitioners.
I have considered the ‘application’ as well as the submissions of both counsel. I have also perused this file with a view to establishing what the real dispute between the parties is. I bear in mind the fact this a court of record.
I do note that on 24/2/2003, Mr. Kamwendwa who was then holding brief for Mr. Mwangi for the protester/ applicant and Mr. Gathara who appeared for the petitioners/respondents, appeared before Waweru J. and recorded the following order:-
‘By consent,
1. The application by summons dated 13th November 2001 be and is hereby withdrawn with no order as to costs.
2. The application for confirmation of grant by summons dated 24. 10. 1995 is hereby fixed for hearing upon submissions and the affidavits already filed on 18. 3.2003. Any beneficiary now not represented by counsel shall be entitled to be heard’.
In my humble opinion, having recorded the above consent order, which remains valid to date as it has not been set aside, it is but an abuse of the process for the applicants counsel to prosecute an application which is no longer on record.
It is for that reason that I decline to rule on a non existent application. The ‘applicant’ who would be well advised to file a relevant application to protect whatever rights she claims against the estate.
It is important that I reiterate Justice Khamoni’s sentiments when he declined to handle this matter on 13/2/2002, and stated that “unless the parties are consistent, especially their advocates, and are out to create more problems and complicate this simple matter instead of solving and settling the few problems that are there presently, I do not see the propriety of my handling this matter.”
In view of the above, each party shall bear its own costs, for had the petitioners and their counsel been vigilant, the withdrawn application would not have been ‘prosecuted’ and the matter would not have proceeded on 14/10/2008 and 6/5/2009.
Dated and delivered at Nairobi this 2nd day of June 2009.
JEANNE GACHECHE
Judge
Delivered in the presence of:
For the protester/applicant – Mr. Karanja
For the petitioners/respondents – Mr. Gathara