[2009] KEHC 3115 (KLR)
The court found that the application to set aside the orders of 7th December, 2007 was incompetent and misconceived, as the applicant failed to demonstrate that the court lacked jurisdiction or that there was any proper basis for setting aside the orders. The court also held that no sufficient cause was disclosed...
Source-derived case information.
- Citation
- [2009] KEHC 3115 (KLR)
- Parties
- Applicant: Applicant (Name Not Provided); Respondent: Respondent (Name Not Provided)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 70 of 1995
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Grant and for Court Disqualification
- Outcome
- application dismissed
- Judges
- CN Mugo
- Legal Topics
- Revocation of Grant, Jurisdiction of Court, Disqualification of Judge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant (Name Not Provided)
Applicant
Respondent (Name Not Provided)
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Grant and for Court Disqualification
Legal Issues
- 1 Whether the court should set aside the orders issued by Hon. Mr. Justice Kimaru on 7th December, 2007 for lack of jurisdiction.
- 2 Whether the application for disqualification of the presiding judge is competent and properly before the court.
- 3 Whether the applicant's conduct amounts to abuse of court process.
Ratio Decidendi
The court found that the application to set aside the orders of 7th December, 2007 was incompetent and misconceived, as the applicant failed to demonstrate that the court lacked jurisdiction or that there was any proper basis for setting aside the orders. The court also held that no sufficient cause was disclosed for the disqualification of the presiding judge. The applicant's conduct, including repeated changes of counsel and failure to prosecute the application with diligence, was deemed an abuse of the court process. Consequently, the court exercised its inherent jurisdiction to strike out and dismiss the application suo moto.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 26th June 2008 is hereby struck out and accordingly dismissed.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Succession Cause 70 of 1995
IN THE MATTER OF THE ESTATE OF KIPLANGAT KIPTUI [DECEASED]
RULING
This cause is now 14 years old. A grant of letters of administration intestate was issued by this court on 7th December, 2007 and an application to revoke the same filed on 18th December 2007. The application was sited by... The former later changed counsel and filed the present application under a Notice of Motion dated 26th June 2008. The application has been pending for over 1 year now.
The applicant prays that the Hon. Mr. Justice Kimaru’s orders be set aside by this court ex debito justiciae on the ground that the Honourable Judge lacked jurisdiction and that his Lordship’s decision of 7th December, 2007 is a nullity and amounts to nothing. This court raised the issue of the competence of the application with the counsel for he applicant and expressed the view that this court considers itself not suited to entertain the application being in the nature of appeal. For that reason the applicants have now asked the court to disqualify itself. I am of the view that no proper cause has been disclosed for this court to disqualify itself. For reasons best known to the applicant it appears to this court, quite clearly, that she is not desirous of having this matter concluded with the expediency it deserves and is holding the respondents at ransom. Being of the considered view that the application itself is incompetent, misconceived and an abuse of the process of the court I am inclined to dismiss it, suo motto, the applicant having squandered the opportunity given by this court to consider her position and have the application heard, during which time she would have persuaded the court of the merits of application, if any.
In the premises the Notice of Motion dated 26th June 2008 is hereby struck out and accordingly dismissed.
Dated, signed and delivered at Nakuru this 6th day of July 2009
M. G. MUGO
JUDGE