[2018] KEHC 6613 (KLR)
The court found that the letter from the interested parties' advocates, though not expressly copied to other parties or stating withdrawal, clearly indicated the intention to abandon or withdraw the application for joinder. The court therefore marked the application as withdrawn or abandoned. Since the objectors had...
Source-derived case information.
- Citation
- [2018] KEHC 6613 (KLR)
- Parties
- Applicant: Rael Wavinya Mutisya; Applicant: David Kitulu Mutisya; Respondent: Luka Mutisya; Respondent: Shadrack Mbithi Mutisya; Interested Party: Raphael Mworia; Interested Party: Peter Ketyenya Rutto; Interested Party: Intercounty Properties Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 118 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Joinder of Interested Parties
- Outcome
- Application marked as withdrawn or abandoned; costs awarded to the objectors.
- Judges
- BC Koech
- Legal Topics
- Joinder of Parties, Withdrawal of Application, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rael Wavinya Mutisya
Applicant
David Kitulu Mutisya
Applicant
Luka Mutisya
Respondent
Shadrack Mbithi Mutisya
Respondent
Raphael Mworia
Interested Party
Peter Ketyenya Rutto
Interested Party
Intercounty Properties Ltd
Interested Party
Procedural Posture
Succession Cause / Ruling on Application for Joinder of Interested Parties
Legal Issues
- 1 Whether the interested parties should be enjoined in the succession proceedings as interested parties.
- 2 Whether the application for joinder should be marked as withdrawn or abandoned based on the letter from the interested parties' advocates.
- 3 Who should bear the costs of the withdrawn application.
Ratio Decidendi
The court found that the letter from the interested parties' advocates, though not expressly copied to other parties or stating withdrawal, clearly indicated the intention to abandon or withdraw the application for joinder. The court therefore marked the application as withdrawn or abandoned. Since the objectors had opposed the application and costs generally follow the event, the court awarded costs to the objectors.
Court Disposition
Application marked as withdrawn or abandoned; costs awarded to the objectors.
Orders
- The Interested Parties' Application dated 20/06/2017 is marked as withdrawn and/or abandoned.
- Costs of the application are awarded to the objectors.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO.118 OF 2011
IN THE MATTER OF THE ESTATE OF TIMOTHY MUTISYA WAUSI – DECEASED
RAEL WAVINYA MUTISYA.......................................................1ST PETITIONER
DAVID KITULU MUTISYA........................................................2ND PETITIONER
VERSUS
LUKA MUTISYA..............................................................................1ST OBJECTOR
SHADRACK MBITHI MUTISYA..................................................2ND OBJECTOR
AND
RAPHAEL MWORIA
PETER KETYENYA RUTTO
INTERCOUNTY PROPERTIES LTD...............................INTERESTED PARTIES
RULING
1. The Interested Parties herein filed a Notice of Motion Application dated 20th June, 2017 seeking to be enjoined into the suit as interested parties on the grounds inter alia that they had entered into an agreement of sale of land measuring 0. 809 Hectares contained in Kitanga Settlement Scheme Plot No. 17 with the 2nd Petitioner herein and therefore they require their interests to be safeguarded.
2. The Application was opposed by the Objectors on the grounds inter alia that the interested parties should wait for the succession process to be completed then they could lodge their claims against the concerned beneficiary who had sold land to them before the grant was confirmed; that the interested parties are not creditors of the estate of the deceased herein, that joining the interested parties would cause unnecessary delay with no fruitful outcome.
3. Parties herein agreed to have the Application determined on the basis of the affidavits in support or in opposition of the Application. This court reserved the matter for ruling on the 24/5/2018.
4. The Interested Parties Advocates vide a letter dated 7/5/2018 and received in court on 21/5/2018 made a request that the ruling herein be arrested since the interested parties are no longer interested in being enjoined in the suit. The letter further indicated that the Interested Parties have decided not to pursue the Application any further.
5. The letter aforesaid was not copied to the learned Counsels for the Petitioners and the Objectors and further the same did not expressly state that the Application was being withdrawn or abandoned. However going by the tenor of the letter it is clear that the intention of the Interested Parties is to withdraw or abandon the said Application dated 20/06/2017.
6. In the premises, I order that the Interested Parties Application dated 20/06/2017 is marked as withdrawn and or abandoned. As the Application had been opposed by the Objectors and as costs usually follow the event, I order that the costs shall be to the Objectors.
Orders accordingly.
Dated and delivered at Machakos this 24th day of May, 2018.
D. K. KEMEI
JUDGE
In the presence of:-
Munguti - for the Petitioners
Nzioka/ Nzikini - for the Objectors
Kalume for the Interested Parties
Josephine - Court Assistant