[2016] KEHC 724 (KLR)
The court found that the application as drafted was defective and did not achieve its intended purpose of seeking leave to appeal out of time and stay orders. The applicant, through counsel, sought to withdraw the application to file a more appropriate one. Given the age of the matter and the pending application by...
Source-derived case information.
- Citation
- [2016] KEHC 724 (KLR)
- Parties
- Applicant: Isaiah Gichimu Waweru; Respondent: Elijah Nganga Waweru
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 9 of 2015
- Procedural Posture
- Succession Cause / Ruling on Notice of Motion to Extend Time and Withdrawal of Application
- Outcome
- Application withdrawn with costs to the respondent.
- Judges
- CW Meoli
- Legal Topics
- Extension of Time, Withdrawal of Application, Confirmation of Grant, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Gichimu Waweru
Applicant
Elijah Nganga Waweru
Respondent
Procedural Posture
Succession Cause / Ruling on Notice of Motion to Extend Time and Withdrawal of Application
Legal Issues
- 1 Whether the applicant should be allowed to withdraw the application filed on 15th April 2016.
- 2 Whether the application for extension of time to file appeal and stay orders has merit if not withdrawn.
- 3 Whether costs should be awarded to the respondent upon withdrawal of the application.
Ratio Decidendi
The court found that the application as drafted was defective and did not achieve its intended purpose of seeking leave to appeal out of time and stay orders. The applicant, through counsel, sought to withdraw the application to file a more appropriate one. Given the age of the matter and the pending application by counsel to withdraw from acting, the court held it was just and prudent to allow the withdrawal, enabling the applicant to bring a fresh application if desired. However, since the respondent had already incurred costs in responding, the court awarded costs to the respondent upon withdrawal of the application.
Court Disposition
Application withdrawn with costs to the respondent.
Orders
- The application filed on 15/4/2016 is withdrawn.
- Costs of the withdrawn application are awarded to the respondent.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
SUCCESSION CAUSE NO. 9 OF 2015
IN THE MATTER OF THE ESTATE OF MARY WANJIKU WAWERU (DECEASED)
ISAIAH GICHIMU WAWERU…………………………………………….……APPLICANT
-VERSUS-
ELIJAH NGANGA WAWERU…………………………………………………..RESPONDENT
FORMERLY
CM’s Succession Cause No. 49 of 2010
In the matter of the estate of Mary Wanjiku Waweru (Deceased)
Isaiah Gichumu Waweru………………………………………………………………1st Petitioner
Elijah Nganga Waweru………………………………………………………………….2nd Petitioner
CONSOLIDATED WITH
CM’s Succession Cause 134 of 2010
In the matter of the estate of Mary Wanjiku Waweru (Deceased)
Elijah Nganga Waweru …………………………………………………………………1st Petitioner
Joel Njihia Waweru………………………………………………………………………2nd Petitioner
R U L I N G
1) On 10th July, 2015 this court deliverd a ruling in respect of the protest field by Elijah Ng’ang’a Waweru against a summons filed by his step-brother Isaiah Gichumu Waweru to confirm a grant issued in his favour.
2) On 15/4/2016 the present Notice of Motion was filed by Isaiah Gichimu Waweru [Isaiah]. The application is expressed to be brought under Section 7 and 3A of the Appellate Jurisdiction Act, and is supported by the Affidavit of Isaiah. The Motion seeks the extension of time “for giving notice of intention to appeal…… or making an application for leave to appeal.”
3) The Applicant asserts that delay was occasioned by typing of the proceedings and other court processes and that he will suffer prejudice if he is not allowed to apply for leave to canvass his otherwise merited appeal.
4) The application was opposed through the Replying affidavit of Elijah Ng’ang’a Waweru(Elijah). He states that delay has been inordinate; that this court has no jurisdiction to extend time; that no evidence was tendered to support the allegation that Applicant had applied for proceedings. That the application is an afterthought and will occasion further delay to the conclusion of the suit and prejudice to other dependants.
5) The parties disposed of the application through written submissions. The gist of Applicant’s submissions is as follows:
“The Applicant lodged an application dated 4/04/2016 ……the real intention was to seek leave out of time to file an appeal and stay orders on the ruling of 10/7/2015. ”
Regrettably, the drafting and form of application has not been able to achieve objective. We submit for withdrawal of the application dated 4/4/2016 with a view to lodging an appropriate application in the circumstances and on instructions of our client. “Costs in cause…….”
6) When he appeared before me on 22/11/2016 Mr. Kimani, referring to the application he filed on 28/10/2016 to withdraw from acting asked that it be held in abeyance pending ruling herein.
7) I do not see on record the submissions of the Respondent, Elijah and the court will treat the Replying affidavit as the sole response by Elijah.
8) I have considered the material presented before the court. Two issues stand out for determination, namely, whether to allow the withdrawal of summons as sought in the submissions and if not, whether the application before the court has merit.
9) Firstly, it is true that the drafting of the prayers in the application leaves a lot to be desired. The Applicant’s submissions was that the intention was “to seek leave out of time to file an appeal and a stay of orders of the ruling of 10/7/2015”. I notice that the Applicant’s advocate had filed a notice of withdrawal of the application alongside the submissions. It is based on some of the matters deponed to in the affidavit of the Applicant that indeed the Applicant also intended to seek stay pending appeal.
10) While this is an old matter, having commenced 2010, and in light of the pending application by counsel for the Applicant to withdraw from acting, I think it is more prudent and just to allow the withdrawal of the application filed on 15th April 2016. That way, the Applicant will have opportunity, if he so deems fit, to bring a fresh application consistent with his intention and based on the advice of the counsel of his choice.
11) However, the Respondent has incurred costs while responding to the said application, by appearances and the filing of a Replying affidavit. In the circumstances the application filed on 15/4/2016 is withdrawn but costs are awarded to the Respondent thereto.
Delivered and signed at Naivasha this 20th day ofDecember 2016.
In the presence of:-
Mr. Gichuki for the 1st Petitioner
Mr. Obino for the 2nd Petitioner/Protester
Court Assistant Barasa
C. W. MEOLI
JUDGE