[2022] KEHC 12342 (KLR)
The court declined to determine the application to set aside the stay orders and transfer Kakamega CMCSC No 37 of 2017 because the file for the latter was not before the court. Without access to that file, the court could not ascertain the relationship between the two matters or whether they could be heard together....
Source-derived case information.
- Citation
- [2022] KEHC 12342 (KLR)
- Parties
- Applicant: Agnes Imisah Kulebi; Respondent: Jannes Mwavaka Kenyatta
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 569 of 2015
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Stay Orders and Transfer Suit
- Outcome
- Application not determined; directions issued for retrieval of related file.
- Judges
- WM Musyoka
- Legal Topics
- Succession Proceedings, Stay of Proceedings, Transfer of Suit, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Imisah Kulebi
Applicant
Jannes Mwavaka Kenyatta
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Stay Orders and Transfer Suit
Legal Issues
- 1 Whether the orders of November 21, 2019, staying the proceedings should be set aside.
- 2 Whether Kakamega CMCSC No 37 of 2017 should be transferred to the High Court to be heard alongside the instant cause.
- 3 Whether the administrator is abusing the process of court by delaying proceedings.
Ratio Decidendi
The court declined to determine the application to set aside the stay orders and transfer Kakamega CMCSC No 37 of 2017 because the file for the latter was not before the court. Without access to that file, the court could not ascertain the relationship between the two matters or whether they could be heard together. The court held that it would be premature to make a determination in the absence of the relevant file and directed that a certified copy of the ruling be provided to facilitate retrieval of the file.
Court Disposition
Application not determined; directions issued for retrieval of related file.
Orders
- A certified copy of this ruling to be made available to the Chief Magistrate and the Deputy Registrar of the High Court, Hon JN Maragia.
Full Case Text
Judgment text and source record
16 paragraphs
In re Estate of Indeche Waswa Wikinza (Deceased) (Succession Cause 569 of 2015) [2022] KEHC 12342 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 12342 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 569 of 2015
WM Musyoka, J
June 24, 2022
IN THE MATTER OF THE ESTATE OF INDECHE WASWA WIKINZA alias INDECHE WASWA WIKUNZA (DECEASED)
Ruling
1. I am determining an application, dated December 17, 2021. It is brought at the instance of Agnes Imisah Kulebi, who I shall refer to hereafter as the applicant, and it seeks the setting aside of orders that were made on November 21, 2019, and the transfer of Kakamega CMCSC No 37 of 2017 to the High Court, to be heard alongside the instant cause. The applicant indicates that the respondent, the administrator herein, Jannes Mwavaka Kenyatta, had obtained the orders of November 21, 2019, whose effect was to stay the proceedings in this cause, pending the hearing and determination of Kakamega CMCSC No 37 of 2017. She complains that since then, the administrator has not taken steps to have Kakamega CMCSC No 37 of 2017 fixed for hearing or determined. She asserts that the administrator is using the order of November 21, 2019, to delay the course of justice and to abuse the process of court. She avers that the two causes are related, and Kakamega CMCSC No 37 of 2017 could be heard alongside this cause to save on time.
2. The application is opposed by the administrator. He filed grounds of opposition, on January 25, 2022, dated January 24, 2022. He argues that the application is bad in law, misconceived and an abuse of process; it does not raise triable issues; it is not supported by evidence; it does not meet the requirements of the law under which it is premised; and it is fatally defective.
3. The same came up for hearing before me on January 25, 2022. Mr Shivega for the applicant and Mr Abok for the administrator addressed me on it. I will not recite their arguments, for reasons that will become clear in the preceding paragraphs.
4. The application is largely premised on the pendency of Kakamega CMCSC No 37 of 2017. Am told that the two matters or causes are related, and can be handled and determined simultaneously. However, upon browsing through the file herein, I realized that the file in Kakamega CMCSC No 37 of 2017 is not before me. Without the file in Kakamega CMCSC No 37 of 2017, I cannot tell whether it is related to the instant cause, and whether the two can be handled simultaneously or alongside each other. It would be premature, therefore, for me, to determine the application without that file in front of me.
5. To facilitate retrieval of that file, I hereby direct that a certified copy of this ruling be made available to the Chief Magistrate and the Deputy Registrar of the High Court, Hon JN Maragia.
6. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 24TH DAY OF JUNE 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Shivega, instructed by Victor Shivega & Co, Advocates, for the applicant.Mr. Abok, instructed by Abok Odhiambo & Company, Advocates, for the respondent.