[2012] KEHC 3288 (KLR)
The court held that the applicant is permitted to withdraw the summonses for revocation of grant and related interlocutory applications, subject to payment of costs to the respondent, either as agreed or taxed by the taxing officer. The applicant is also required to pay the costs of the respondent's spent...
Source-derived case information.
- Citation
- [2012] KEHC 3288 (KLR)
- Parties
- Applicant: Tony Kent; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 35 of 2009
- Procedural Posture
- Succession Cause / Ruling on Withdrawal of Summons for Revocation of Grant and Related Applications
- Outcome
- Application for withdrawal of summonses for revocation of grant allowed with conditions as to costs.
- Judges
- EM Muriithi
- Legal Topics
- Succession Proceedings, Withdrawal of Applications, Costs Award, Revocation of Grant
- 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
Tony Kent
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Ruling on Withdrawal of Summons for Revocation of Grant and Related Applications
Legal Issues
- 1 Whether the applicant should be granted leave to withdraw the summonses for revocation of grant and related interlocutory applications.
- 2 Whether the withdrawal should be subject to payment of costs to the respondent.
- 3 Whether the applicant should be barred from filing further proceedings before payment of such costs.
Ratio Decidendi
The court held that the applicant is permitted to withdraw the summonses for revocation of grant and related interlocutory applications, subject to payment of costs to the respondent, either as agreed or taxed by the taxing officer. The applicant is also required to pay the costs of the respondent's spent application. However, the court exercised its discretion not to bar the applicant from filing further proceedings before payment of costs, provided that the applicant's counsel lodges a professional undertaking within seven days to pay the taxed or agreed costs within seven days after ascertainment. This approach balances the respondent's right to costs with the applicant's...
Court Disposition
Application for withdrawal of summonses for revocation of grant allowed with conditions as to costs.
Orders
- The applicant is granted leave to withdraw the summonses for revocation of grant dated 27th February 2012 and 12th June 2012 and related interlocutory applications, subject to payment of costs to the respondent as agreed or taxed.
- The applicant shall pay the respondent the costs of the respondent's spent application dated 20th June 2012 as agreed or taxed.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMOMBASA
SUCCESSION CAUSE 35 OF 2009
IN THE MATTER OF:THE ESTATE OF NICOLA POLCINO (DECEASED)
AND
IN THE MATTER OF:THE LAW OF SUCCESSION ACT CAP 160 LAWSOF KENYA
CONSOLIDATED WITH
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
SUCCESSION CAUSE NO. 31 OF 2006
IN THE MATTER OF:THE ESTATE OF NICOLA POLCINO (DECEASED)
AND
IN THE MATTER OF:THE LAW OF SUCCESSION ACT CAP 160 LAWS OF KENYA
TONY KENT.............................................................................APPLICANT/BENEFICIARY
RULING
(1)Counsel for one Tony Kent, an alleged beneficiary to the Estate of Nicola Polcino (deceased), seeks to withdraw his Summonses for Revocation of Resealed Grant of this court in the said estate dated 27th February 2012 and 12th June 2012 together with attendant interlocutory applications by Notice of Motion made thereunder dated 27th February 2012 and 14th June 2012, respectively. Counsel has intimated that he intends to bring further similar proceedings after the withdrawal of the present proceedings which the Respondent has opposed on various grounds.
(2)The Notice of Motion dated 27th February 2012 under the first Summons for Revocation of Grant was pending ruling before the court on a Preliminary Objection taken by the Respondent on the validity of a Power of Attorney in favour of one Maurazio Turato, the deponent of the supporting affidavit therein.
(3)The Applicant obtained ex parte orders under the Notice of Motion of 14th June 2012 filed in the second Summons for Revocation of Grant prompting the Respondent to file a counter-application dated 20th June 2012 upon which the court set aside its ex parte order of 14th June 2012. This application by the Respondent would following the withdrawal of the Summons for Revocation and Notice of Motion of 14th June 2012 be spent.
(4)In response to the Applicant counsel’s prayer for leave to withdraw the two summonses and corresponding interlocutory applications, counsel for the Respondent has submitted that the proceedings should be withdrawn subject to the payment of costs thereon to be agreed between the parties or in default taxed by the taxing officer of the court. Counsel also objects to the filing of any further proceedings by the Applicant before the payment of such costs.
(5)The applicant’s counsel has offered to give a professional undertaking to pay the costs as taxed or agreed between the parties.
(6)The issue that arises therefore is whether the proceedings filed by the Applicant shall be withdrawn with costs to be paid before the Applicant may file further proceedings in the matter.
(7)I have considered the matter and rule as follows: -
(1) The Applicant shall have leave to withdraw his
Summonses for Revocation of Grant dated respectively 27th February 2012 and 12th June 2012 and the related interlocutory applications thereunder of 27th February 2012 and 14th June 2012 subject to the payment to the Respondent of costs thereon to be agreed or in default taxed by the taxing officer of the court.
(2)The Applicant shall also pay to the Respondent the costs of the Respondent’s spent application dated 20th June 2012 as prayed to be agreed or in default taxed by the taxing officer of the court.
(3)Although the court has a discretion under Order 25 rule 4 of the Civil Procedure Rules to stay subsequent proceedings before payment of costs for withdrawn proceedings, I, in view of the constitutional right to access to justice under Article 48 of the Constitution and the seriousness of the allegations of forgery and fraud made in the present case, permit the Applicant to file further proceedings as he may be advised subject to a professional undertaking by counsel for the Applicant, Mr. Macharia Ng’aru, to be lodged within the next 7 days, binding himself to pay the taxed or agreed costs within 7 days after the costs become ascertained.
Dated and delivered this 5th day of July 2012.
EDWARD M. MURIITHI
JUDGE
In the presence of: -
Mr.Macharia for the Applicant
Mr Inamdar for the Respondent
Ms.linda Court Clerk