[2018] KEHC 7933 (KLR)
The court exercised its discretion under section 27 of the Civil Procedure Act, noting that both parties are family members and both incurred costs in the proceedings. The court found that the withdrawal of the application would facilitate the hearing and determination of the earlier filed Succession Cause No. 562...
Source-derived case information.
- Citation
- [2018] KEHC 7933 (KLR)
- Parties
- Applicant: Phylis Wangui Oiyie; Respondent: Samante Ole Oiyie
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Cause 1 of 2017
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- Application withdrawn; confirmed grant revoked; no order as to costs.
- Legal Topics
- Revocation of Grant, Costs in Succession, Withdrawal of Application
- 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
Phylis Wangui Oiyie
Applicant
Samante Ole Oiyie
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the confirmed grant dated 10/12/2015 should be revoked.
- 2 Whether the objector is entitled to costs of the application.
- 3 Whether the withdrawal of the instant succession cause facilitates the hearing of an earlier filed cause.
Ratio Decidendi
The court exercised its discretion under section 27 of the Civil Procedure Act, noting that both parties are family members and both incurred costs in the proceedings. The court found that the withdrawal of the application would facilitate the hearing and determination of the earlier filed Succession Cause No. 562 of 2011. Consequently, the court declined to award costs to the objector, revoked the confirmed grant dated 10/12/2015, and found it unnecessary to order cancellation of the Kenya Gazette Notice as the revocation rendered the issue moot.
Court Disposition
Application withdrawn; confirmed grant revoked; no order as to costs.
Orders
- The confirmed grant dated 10/12/2015 is revoked.
- No order as to costs; objector's request for costs declined.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
SUCC CAUSE NO. 1 OF 2017
IN THE ESTATE OF WUANGA OIYE (DECEASED)
PHYLIS WANGUI OIYIE ……………….……………….PETITIONER
VERSUS
SAMANTE OLE OIYIE …………………....………………..OBJECTOR
RULING
1. On 16/11/2017, the petitioner instructed her counsel to concede to the application for summons for revocation of the confirmed grant by the High Court (Ndung’u, J) which was issued by the High Court on 10/12/2015. According to the petitioner, the said confirmed grant had not been executed. Additionally, counsel for the petitioner also submitted that there is in place Succession Cause No. 562 of 2011, which involves the same estate of Waunga Ole Oyie and is pending in this court for hearing and determination. It was also her submission that Succession Cause No. 562 of 2011 had been filed earlier than the instant Succession Cause. Finally, counsel submitted that the withdrawal of the instant Succession Cause will facilitate the hearing and disposal of Succession Cause No. 562 of 2011 in which all the issues raised will be determined.
2. The objector, conceded that the confirmed grant be revoked on condition that he be paid costs of this application. He also submitted the Kenya Gazette Notice No. 5629 of 22/7/2016 be cancelled.
3. In reply, Ms Maritim for the petitioner opposed the award of costs. In doing so, she submitted that the petitioner has similarly incurred costs in prosecuting this application.
4. I have considered the rival submissions of both parties in the light of the applicable law. I find that the award of costs is in the discretion of the court in terms of section 27 of the Civil Procedure Act (Cap 21) Laws of Kenya. I also find that both parties are members of the same family. Furthermore, the withdrawal of this application will facilitate the hearing and determination of the Succession Cause No. 562 of 2011. I also find that both parties have incurred costs in the course of prosecuting this application.
5. In the light of the foregoing findings, I hereby decline to award costs to the objector. Furthermore, I hereby revoke the confirmed grant dated 10/12/2015 that was issued by the High Court (Ndung’u, J). And for that reason, it is a moot point to order the cancellation of the Kenya Gazette Notice No. 5629 of 22/7/2016.
6. The upshot of the foregoing is that this application is hereby withdrawn.
Ruling delivered in open court this 15th day of February, 2018 in the absence of both parties.
J. M. Bwonwonga
Judge
15/2/2018