[2016] KEHC 728 (KLR)
The court found that the application dated 12th February 2015 was fundamentally inconsistent with the main petition, which was premised on the deceased having died intestate. Since the interlocutory application was based on the assertion that the deceased died testate, it was not aligned with the foundation of the...
Source-derived case information.
- Citation
- [2016] KEHC 728 (KLR)
- Parties
- Applicant: Agnes Wanja Gichuhi; Respondent: George Gichuhi Kimemia; Applicant: Joseph Ndung’u Gichuhi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 277 of 2015
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application
- Outcome
- application struck out as misconceived and an abuse of process
- Judges
- DN Musyoka, REA Ougo
- Legal Topics
- Testate Vs Intestate Succession, Grant of Letters of Administration, Intermeddling With Estate Property
- 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
Agnes Wanja Gichuhi
Applicant
George Gichuhi Kimemia
Respondent
Joseph Ndung’u Gichuhi
Applicant
Procedural Posture
Succession Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to orders restraining the respondent from intermeddling with Dagoretti/Riruta/5159.
- 2 Whether the application is consistent with the main petition alleging intestacy.
- 3 Whether the application is an abuse of court process.
Ratio Decidendi
The court found that the application dated 12th February 2015 was fundamentally inconsistent with the main petition, which was premised on the deceased having died intestate. Since the interlocutory application was based on the assertion that the deceased died testate, it was not aligned with the foundation of the proceedings. The court held that such inconsistency renders the application misconceived and an abuse of the court process. Consequently, there was no legal basis to grant the orders sought, and the application was struck out with costs to the respondent. Temporary orders previously granted were also discharged.
Court Disposition
application struck out as misconceived and an abuse of process
Orders
- The application dated 12th February 2015 is struck out with costs to the respondent.
- Temporary orders made on 12th February 2015 are discharged.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 277 OF 2015
IN THE MATTER OF THE ESTATE OF HANNAH NJERI GICHUHI (DECEASED)
RULING
1. The application for determination is the summons dated 12th February 2015. It is brought at the instance of Agnes Wanja Gichuhi, who claims to be the executor of the will of the deceased made on 9th July 2009. She seeks orders to restrain George Gichuhi Kimemia from intermeddling with a property known as Dagoretti/Riruta/5159. Her affidavit was sworn on 12th February 2015. She alleges that the said property was given to her in the will of the deceased.
2. The person named in the application as respondent, George Gichuhi Kimemia, swore an affidavit on 27th March 2015, which was filed herein on the same date. He too claims that Dagoretti/Riruta/5159 was given to him by a will the deceased made on 5th February 2015.
3. The applicant herein, together with Joseph Ndung’u Gichuhi, petitioned this court in this cause on 10th February 2015, by a petition lodged in the cause on the said date. The petition is supported by an affidavit sworn by the two petitioners on 29th January 2015. They seek a grant of letters of administration intestate, on the averments that the deceased had died intestate. The cause herein was commenced or originated by the said petition.
4. Clearly, the averments made in the application dated 12th February 2015 are not aligned with those in the petition. The petition should be the foundation or basis of the said application. If the main pleading is that the deceased died intestate, then there cannot be any basis for the averment in the interlocutory application that the deceased had died testate. The petition and the interlocutory application are not in sync.
5. I do not see any basis upon which I can grant the orders sought. The application dated 12th February 2015 is misconceived and an abuse of the court process. It is hereby struck out, with costs the respondent. The temporary orders made herein on 12th February 2015 are hereby discharged.
6. The Deputy Registrar is hereby directed to cause the petition herein to be gazetted upon payment of the requisite fees.
7. It is so ordered.
DATED and SIGNED at NAIROBI this 16TH DAY OF DECEMBER, 2016.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 20TH DAY OF DECEMBER, 2016.
R. OUGO
JUDGE