[2019] KEHC 3946 (KLR)
The court found that the application dated 6th March, 2017, for which a ruling date had been reserved, had already been marked as withdrawn by consent of the parties on 16th October, 2017. As such, there was no longer any live application before the court for determination. The court held that it could not proceed...
Source-derived case information.
- Citation
- [2019] KEHC 3946 (KLR)
- Parties
- Applicant: Priscilla Mumbua Kilonzo; Respondent: Phoebe Mbeneka Kilonzo; Protestor: Daniel Kilonzo; Protestor: Francis Kilonzo; Objector: Shadrack Musyoki; Interested Party: Benard Muteti Mung’ata
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 261 of 2007
- Procedural Posture
- Succession Cause / Order on Withdrawn Application
- Outcome
- Application marked as withdrawn; no ruling delivered.
- Judges
- GV Odunga
- Legal Topics
- Succession, Estate Distribution, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Priscilla Mumbua Kilonzo
Applicant
Phoebe Mbeneka Kilonzo
Respondent
Daniel Kilonzo
Protestor
Francis Kilonzo
Protestor
Shadrack Musyoki
Objector
Benard Muteti Mung’ata
Interested Party
Procedural Posture
Succession Cause / Order on Withdrawn Application
Legal Issues
- 1 Whether the application dated 6th March, 2017 was still pending for determination.
- 2 Whether the court could deliver a ruling on an application already marked as withdrawn.
Ratio Decidendi
The court found that the application dated 6th March, 2017, for which a ruling date had been reserved, had already been marked as withdrawn by consent of the parties on 16th October, 2017. As such, there was no longer any live application before the court for determination. The court held that it could not proceed to deliver a ruling on a non-existent application, and the matter was accordingly marked as such. The court reaffirmed the binding nature of consent orders and the principle that judicial time should not be expended on applications that have been withdrawn by the parties themselves.
Court Disposition
Application marked as withdrawn; no ruling delivered.
Orders
- The application dated 6th March, 2017 is marked as withdrawn and no ruling shall be delivered thereon.
Full Case Text
Judgment text and source record
26 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO 261 OF 2007
IN THE MATTER OF THE ESTATE OF MORRIS KILONZO MUSYIMI (DECEASED)
PRISCILLA MUMBUA KILONZO.....................1ST ADMINISTRATOR
VERSUS
PHOEBE MBENEKA KILONZO......................2ND ADMINISTRATOR
AND
DANIEL KILONZO AND FRANCIS KILONZO...........PROTESTORS
AND
SHADRACK MUSYOKI........................................................OBJECTOR
AND
BENARD MUTETI MUNG’ATA........................INTERESTED PARTY
ORDER
1. On 25th day of September, 2018 this court delivered a ruling in this Cause in which it found that the deceased and the Administrator intended that they be presumed to be husband and wife hence the Court ought not to put their desires asunder. Accordingly, the court proceeded to declare the 2nd Administrator a wife of the deceased and her children the children of the deceased.
2. The Court then directed, pursuant to the provisions of Article 159(2)(d) of the Constitution, that the parties attempt an amicable mode of distribution of the Deceased’s estate, failure to which the Court would proceed to distribute the estate in accordance with the law.
3. On 5th March, 2019, counsel for the parties recorded a consent herein in which they agreed inter alia that the summons dated 12th October, 2018 be marked as withdrawn and that the application dated 6th March, 2017 be disposed by way of written submissions for which timelines were agreed. On 2nd July, 2019, I reserved the delivery of the ruling in respect of the said the application dated 6th March, 2017 for 7th October, 2019.
4. Upon perusing the record, I found that on 16th October, 2017, the parties recorded a consent herein by which inter alia the very same application dated 6th March, 2017 was marked as withdrawn.
5. It therefore follows that the application whose ruling date was reserved for delivery on for 7th October, 2019 no longer exists.
Read, signed and delivered in open Court at Machakos this 7th day of October, 2019.
G. V. ODUNGA
JUDGE
In the presence of:
Mr Nthiwa for the 1st Administrator
Mr Musyimi for Mr Mutinda Kimeu for the Protestor
CA Geoffrey