[2012] KEHC 3691 (KLR)

[2012] KEHC 3691 (KLR)

The court held that while it has discretion to stay subsequent proceedings until costs for withdrawn proceedings are paid, this discretion must be balanced against the constitutional right to access to justice, especially given the seriousness of the allegations in the case. The applicant was granted leave to withdraw the summonses and related applications, subject to payment of costs to the respondent, either as agreed or taxed. However, the applicant was permitted to file further proceedings before payment of such costs, provided that counsel for the applicant lodges a professional undertaking within seven days to pay the taxed or agreed costs within seven days after ascertainment.

Citation
[2012] KEHC 3691 (KLR)
Parties
Applicant: Tony Kent; Respondent: __MISSING__
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
5 July 2012
Case Number
Succession Cause 35 of 2009
Procedural Posture
Succession Cause / Ruling on Withdrawal of Summons for Revocation of Grant and Related Applications
Outcome
Applicant granted leave to withdraw summonses and related applications, subject to payment of costs; permitted to file further proceedings upon counsel's professional undertaking.
Legal Topics
Withdrawal of Proceedings, Costs Award, Revocation of Grant, Powers of Attorney, Access to Justice
Source Language
English
Civil Procedure Family and Children Withdrawal of Proceedings Costs Award Revocation of Grant Powers of Attorney Access to Justice

Case Brief

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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. 1 Whether the applicant should be granted leave to withdraw the summonses for revocation of grant and related interlocutory applications.
  2. 2 Whether the withdrawal should be subject to payment of costs to the respondent.
  3. 3 Whether the applicant should be barred from filing further proceedings before payment of such costs.

Ratio Decidendi

The court held that while it has discretion to stay subsequent proceedings until costs for withdrawn proceedings are paid, this discretion must be balanced against the constitutional right to access to justice, especially given the seriousness of the allegations in the case. The applicant was granted leave to withdraw the summonses and related applications, subject to payment of costs to the respondent, either as agreed or taxed. However, the applicant was permitted to file further proceedings before payment of such costs, provided that counsel for the applicant lodges a professional undertaking within seven days to pay the taxed or agreed costs within seven days after ascertainment.

Court Disposition

Applicant granted leave to withdraw summonses and related applications, subject to payment of costs; permitted to file further proceedings upon counsel's professional undertaking.

Orders

  • Applicant granted leave to withdraw 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.
  • Applicant to pay costs of the respondent's spent application dated 20th June 2012 as agreed or taxed.