[2021] KEHC 4235 (KLR)
The court held that an applicant has the liberty to withdraw an application at any stage before the court's determination, and there was no compelling reason to refuse the withdrawal in this case. The withdrawal was deemed not prejudicial to the interests of justice, especially as the respondents had not filed a...
Source-derived case information.
- Citation
- [2021] KEHC 4235 (KLR)
- Parties
- Applicant: Gichero Kibanya; Applicant: Michael Njeru Kibanya; Applicant: Mary Wanjira Kibanya; Respondent: Peter Kibanya Gichero; Respondent: Benson Wachira Kibanya
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1357 of 2012
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection and Withdrawal of Application
- Outcome
- Application marked as withdrawn; each party to bear own costs.
- Judges
- FN Muchemi
- Legal Topics
- Succession Proceedings, Withdrawal of Application, Preliminary Objection, Costs in Succession, Administration of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gichero Kibanya
Applicant
Michael Njeru Kibanya
Applicant
Mary Wanjira Kibanya
Applicant
Peter Kibanya Gichero
Respondent
Benson Wachira Kibanya
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection and Withdrawal of Application
Legal Issues
- 1 Whether the applicant is entitled to withdraw the application dated 15th April 2021.
- 2 Whether the withdrawal of the application affects the pending preliminary objection.
- 3 Who should bear the costs of the withdrawn application.
Ratio Decidendi
The court held that an applicant has the liberty to withdraw an application at any stage before the court's determination, and there was no compelling reason to refuse the withdrawal in this case. The withdrawal was deemed not prejudicial to the interests of justice, especially as the respondents had not filed a substantive response but only a preliminary objection. Given the nature of succession proceedings and to avoid unnecessary acrimony among family members, the court exercised its discretion to order that each party bear their own costs. The application dated 15th April 2021 was accordingly marked as withdrawn.
Court Disposition
Application marked as withdrawn; each party to bear own costs.
Orders
- The application dated 15th April 2021 is marked as withdrawn.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CASE NO. 1357 OF 2012
IN THE MATTER OF THE ESTATE OF KIBANYA GICHERO (DECEASED)
GICHERO KIBANYA...............3RD ADMINISTRATOR/APPLICANT
MICHAEL NJERU KIBANYA...................................2ND APPLICANT
MARY WANJIRA KIBANYA.....................................3RD APPLICANT
VERSUS
PETER KIBANYA GICHERO...............................1ST RESPONDENT
BENSON WACHIRA KIBANYA..........................2ND RESPONDENT
RULING
1. This matter was last in court on 19/07/2021 when a preliminary objection dated 25/05/2021 was argued orally before the court. The ruling on the preliminary objection was scheduled for delivery on 26/08/2021.
2. As the court set to prepare the ruling, I came across a Notice of withdrawal of the application dated 15/04/2021. This application is the one that formed the basis of the preliminary objection now pending ruling. The notice is dated 19/07/2021 and was filed in court on 22/07/2021 by M.P Mwangi & Co. Advocates. It is noted that the application was filed in the court registry only three(3) days after the hearing of the application.
3. An applicant is at liberty to withdraw his/her application. Although this matter is pending ruling, I find no good reason to refuse withdraw for it will not serve the interests of justice.
4. I note that the respondent’s counsel Mrs Wahome had not filed a replying affidavit but preferred to file a Preliminary objection.
5. As for costs, this being a family/succession cause, I hereby direct that each party meet their own costs.
6. The application dated 15th April 2021 is hereby marked as withdrawn.
DELIVERED, DATED AND SIGNED AT NYERI THIS 26TH DAY OF AUGUST, 2021.
F. MUCHEMI
JUDGE
Ruling delivered through videolink this 26th day of August, 2021.