[2018] KEHC 5597 (KLR)
The court found that the circumstances prevailing at the time of issuing the prohibitory order had not changed and were likely to change only upon delivery of judgment. The purpose of the prohibitory order was to protect the interests of the applicant until the determination of the case. Since judgment was imminent,...
Source-derived case information.
- Citation
- [2018] KEHC 5597 (KLR)
- Parties
- Applicant: Jerevasio Crispin Kinyua; Respondent: Lydia Wangui Mukuthu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 11 of 2016
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application to Lift Prohibitory Order
- Outcome
- application struck out with costs
- Legal Topics
- Prohibitory Orders, Interlocutory Applications, Succession Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jerevasio Crispin Kinyua
Applicant
Lydia Wangui Mukuthu
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application to Lift Prohibitory Order
Legal Issues
- 1 Whether the prohibitory order against the title of L.R. Nthawa/Riandu/2779 should be lifted before delivery of judgment.
- 2 Whether circumstances have changed to warrant lifting the prohibitory order prior to judgment.
Ratio Decidendi
The court found that the circumstances prevailing at the time of issuing the prohibitory order had not changed and were likely to change only upon delivery of judgment. The purpose of the prohibitory order was to protect the interests of the applicant until the determination of the case. Since judgment was imminent, lifting the order at this stage would serve no useful purpose. Therefore, the application to lift the prohibitory order was misconceived and was struck out with costs.
Court Disposition
application struck out with costs
Orders
- The application to lift the prohibitory order is struck out with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION CAUSES NO. 11 OF 2016
In the matter of the Estate of GITI MWANGANGE (Deceased)
LYDIA WANGUI MUKUTHU......................................RESPONDENT
V E R S U S
JEREVASIO CRISPIN KINYUA...........PETITIONER/APPLICANT
R U L I N G
1. I have perused the applicant's application undated but filed on 15/05/2018. It seeks for orders that a prohibitory order issued against the title of L.R. Nthawa/Riandu/2779 be lifted.
2. The respondent vehemently opposed the application in its replying affidavit.
3. This is an application that was filed when this case already had a judgment date. The position or the circumstances prevailing at the time of issuing the order have not changed and are likely to change when judgment is delivered in a few days to come.
4. The purpose of the orders was to protect the interest of the applicant in this case. After all the orders of the prohibitory order were to last until determination of this case. Upon delivery of the judgment the orders shall lapse.
5. If any orders are given at this stage, they will serve no useful purpose.
6. I find this application is misconceived and it is hereby struck out with costs.
7. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF JULY, 2018.
F. MUCHEMI
J U D G E
In the presence of:-
Mr. Okwaro for Andande for Respondent
Petitioner/Applicant