[2008] KEHC 2792 (KLR)
The court found that the applicants failed to satisfy the requirements for review under Order 44 of the Civil Procedure Code. There was no evidence of new material or error apparent on the face of the record, and the applicants had not taken any steps to prosecute their rights for over 10 years. The interlocutory...
Source-derived case information.
- Citation
- [2008] KEHC 2792 (KLR)
- Parties
- Applicant: Julius Kamau Kithaka; Applicant: Rosemary Njoki Ngari; Respondent: Waruguru Kithaka
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 82 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Review and Set Aside Interlocutory Order
- Outcome
- application dismissed
- Legal Topics
- Review of Orders, Interlocutory Orders, Succession Proceedings
- 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
Julius Kamau Kithaka
Applicant
Rosemary Njoki Ngari
Applicant
Waruguru Kithaka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Review and Set Aside Interlocutory Order
Legal Issues
- 1 Whether the ex parte interlocutory order made on 18/3/97 should be reviewed and set aside.
- 2 Whether the requirements under Order 44 of the Civil Procedure Code for review have been satisfied.
- 3 Whether the prolonged delay in prosecuting the application affects the applicants' rights.
Ratio Decidendi
The court found that the applicants failed to satisfy the requirements for review under Order 44 of the Civil Procedure Code. There was no evidence of new material or error apparent on the face of the record, and the applicants had not taken any steps to prosecute their rights for over 10 years. The interlocutory order was made to preserve the estate pending the hearing of the succession matter, which remains unresolved. The court held that it is important to protect the assets of the estate until final orders are made, and there was no justification to set aside the preservation order. Accordingly, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application to review and set aside the interlocutory order is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
Misc Appli 82 of 2007
JULIUS KAMAU KITHAKA………...……………………1ST APPLICANT
ROSEMARY NJOKI NGARI…………….……………….2ND APPLICANT
VERSUS
WARUGURU KITHAKA…………...……………………..RESPONDENT
RULING
This Application arises out of succession matter. The order complained of was made on 18/3/97 to preserve the estate. It is clear this was an interlocutory order made pending hearing inter partes. It is stated from the bar that there is an application pending for Revocation of grant. It is submitted that it has been pending for the last 10 years. All the same the court is being requested to review and set aside the said exparte order on the face of it the order expired on 10/4/97, when the application was to be heard inter- partes there is no evidence as to what happened after inter partes hearing. It appears there is no ground to satisfy the requirements under Order 44 CPC. It is simply that the parties went to sleep on their rights and has not taken any steps over the 10 years. I am not satisfied that there is reason to set aside the order. The succession case is still pending and it is important to protect the assets until the final orders of court are made.
I dismiss application with no orders as to costs.
Dated this 13th February, 2008.
J. N. KHAMINWA
JUDGE