[2002] KEHC 984 (KLR)
The court found that the Notice of Motion was brought under provisions of the Civil Procedure Rules that are expressly excluded from application in succession proceedings by Rule 63 of the Probate and Administration Rules. As such, the application was misconceived and incompetent, and the court had no basis to...
Source-derived case information.
- Citation
- [2002] KEHC 984 (KLR)
- Parties
- Appellant: James Gichuru; Respondent: Charles Ngaii Githuki; Respondent: Solomon Kanethe Githuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 13 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- Notice of Motion struck out as incompetent.
- Legal Topics
- Misapplication of Procedure, Notice of Motion, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Gichuru
Appellant
Charles Ngaii Githuki
Respondent
Solomon Kanethe Githuki
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Notice of Motion was filed under the correct provisions of law.
- 2 Whether the application is competent and properly before the court.
Ratio Decidendi
The court found that the Notice of Motion was brought under provisions of the Civil Procedure Rules that are expressly excluded from application in succession proceedings by Rule 63 of the Probate and Administration Rules. As such, the application was misconceived and incompetent, and the court had no basis to entertain it. The proper procedure was not followed, and the application was therefore struck out.
Court Disposition
Notice of Motion struck out as incompetent.
Orders
- The Notice of Motion dated 8-10-2002 is struck out.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 13 OF 2001
JAMES GICHURU ……………………………..………. APPELLANT
VERSUSCHARLES NGAII GITHUKISOLOMON KANETHE GITHUKI ……………….. RESPONDENTS
Court:
Notice of Motion dated 8-10-2002 brought under Order III Rule Rule 9A and Order L Rule 1 Civil Procedure Rules the proceedings in which the application is filed being proceedings Under the Law of Succession Act, Cap. 160 Laws of Kenya and the provisions of the Civil Procedure Rules aforesaid being those which are excluded from Rule 63 of the Probate and Administration Rules. Clearly the Notice of Motion is filed under wrong provisions and same being therefore misconceived, is incompetent and should not be entertained.
Accordingly the said Notice of Motion be and is hereby struck out.
Dated this 11th day of November, 2002.
J.M. KHAMONIJUDGE