[2024] KEHC 13050 (KLR)
The court found that the application by the applicants to set aside or vary the proceedings and to file their responses was misconceived because the application they sought to respond to had already been heard and determined by a previous judgment. The court held that it was functus officio in respect of the Summons...
Source-derived case information.
- Citation
- [2024] KEHC 13050 (KLR)
- Parties
- Applicant: Julius Warui Ndungu; Applicant: Patrick Wariahe Ndungu; Respondent: Magdaline Wambui Ndungu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 455 of 2011
- Procedural Posture
- Probate and Administration / Ruling on Application to Set Aside or Vary Proceedings and for Leave to File Response
- Outcome
- application dismissed
- Judges
- MA Odero
- Legal Topics
- Probate Procedure, Administration of Estates, Functus Officio, Setting Aside Orders
- 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
Julius Warui Ndungu
Applicant
Patrick Wariahe Ndungu
Applicant
Magdaline Wambui Ndungu
Respondent
Procedural Posture
Probate and Administration / Ruling on Application to Set Aside or Vary Proceedings and for Leave to File Response
Legal Issues
- 1 Whether the court can grant leave to file a response to an application that has already been heard and determined.
- 2 Whether the court is functus officio in respect of the Summons dated 10th February 2023.
Ratio Decidendi
The court found that the application by the applicants to set aside or vary the proceedings and to file their responses was misconceived because the application they sought to respond to had already been heard and determined by a previous judgment. The court held that it was functus officio in respect of the Summons dated 10th February 2023, meaning it had no further jurisdiction to entertain the matter. The only recourse available to the applicants was to appeal the judgment. Consequently, the court dismissed the application in its entirety as it had been overtaken by events.
Court Disposition
application dismissed
Orders
- The summons dated 28th March 2023 is dismissed in its entirety.
- Costs to be met by the applicants.
Full Case Text
Judgment text and source record
21 paragraphs
In re Estate of Mary Nyawira Ndungu (Deceased) (Probate & Administration 455 of 2011) [2024] KEHC 13050 (KLR) (25 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13050 (KLR)
Republic of Kenya
In the High Court at Nyeri
Probate & Administration 455 of 2011
MA Odero, J
October 25, 2024
IN THE MATTER OF THE ESTATE OF MARY NYAWIRA NDUNGU (DECEASED)
Ruling
1. Before this Court for determination is the Summons dated 28th March 2023 by which the Applicants Julius Warui Ndungu And Patrick Wariahe Ndungu seek the following orders:-“1. SPENT
2. That this Court be pleased to set aside or vary the proceedings on 28/03/2023 to enable the Administrators to file their responses to the Application dated 10th February, 2023.
3. That the costs of this application be provided for”
2. The Summons which was premised upon Rule 44 and 73 of the Probate and Administration Rules was supported by the Affidavit of even date sworn by Mshila Shuma an Advocate of the High Court of Kenya.
3. The Respondents opposed the application through the Replying Affidavit dated 17th April 2023 sworn by Magdaline Wambui Ndungu who is the 2nd Respondent.
4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 20th August 2024 whilst the Respondents relied upon their written submissions dated 26th June 2024.
5. I have considered the application before this Court. The Applicants are seeking leave to file their response to the Summons dated 10th February 2023.
6. I have carefully perused the file. I note that the Summons dated 10th February 2023 was heard by Hon Lady Justice Florence Muchemi who delivered a judgment in respect of that Summons on 4th May 2023, a copy of which judgment is in the Court file.
7. The Applicants obviously cannot be seeking to respond to an application which has already been heard and determined. The High Court is now ‘functus officio’ in respect of the Summons dated 10th February 2023. The only remedy available to the Applicants is that of appeal.
8. In the premises I find that this present summons has clearly been overtaken by events. As such the same is dismissed in its entirety.
9. Costs will be met by the Applicants.
DATED IN NYERI THIS 25THDAY OF OCTOBER 2024……………………………MAUREEN A. ODEROJUDGE