[2024] KEHC 13071 (KLR)
The court found that the application for substitution and to set aside the elders' award and consequential orders was without merit because the underlying application had already been heard and determined in 1995, with the court then finding inordinate delay and abuse of process. The decree had been executed and the...
Source-derived case information.
- Citation
- [2024] KEHC 13071 (KLR)
- Parties
- Applicant: John Mbiyu Koinange; Applicant: Edwin Mbiyu Koinange; Applicant: Noah Karuga Koinange; Applicant: Wilfred Mbiyu Koinange; Applicant: Joseph Karuga Koinange; Applicant: James Njoroge Koinange; Applicant: Raymond Njoroge Koinange; Applicant: Leonard Karuga Koinange; Applicant: Godfrey Tharuba Koinange; Applicant: Wanjiru Gathiomi Koinange; Applicant: Nyambura Mbiyu Koinange; Applicant: Joyce Kagendo Koinange; Applicant: Phyllies Wambui Koinange; Applicant: Elizabeth Gathoni Koinange; Applicant: Annastasia Wanjiru (representing estate of the 4th Applicant); Respondent: Charles Karuga Koinange
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 66 of 1984
- Procedural Posture
- Civil Case / Ruling on Substitution and Setting Aside Application
- Outcome
- application dismissed
- Judges
- PM Nyaundi
- Legal Topics
- Substitution of Parties, Setting Aside Award, Probate and Administration, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mbiyu Koinange
Applicant
Edwin Mbiyu Koinange
Applicant
Noah Karuga Koinange
Applicant
Wilfred Mbiyu Koinange
Applicant
Joseph Karuga Koinange
Applicant
James Njoroge Koinange
Applicant
Raymond Njoroge Koinange
Applicant
Leonard Karuga Koinange
Applicant
Godfrey Tharuba Koinange
Applicant
Wanjiru Gathiomi Koinange
Applicant
Nyambura Mbiyu Koinange
Applicant
Joyce Kagendo Koinange
Applicant
Phyllies Wambui Koinange
Applicant
Elizabeth Gathoni Koinange
Applicant
Annastasia Wanjiru (representing estate of the 4th Applicant)
Applicant
Charles Karuga Koinange
Respondent
Procedural Posture
Civil Case / Ruling on Substitution and Setting Aside Application
Legal Issues
- 1 Whether the applicant should be substituted as a party representing the estate of the deceased 4th applicant.
- 2 Whether the court should set aside the elders' award adopted in May 1992 and the consequential orders.
- 3 Whether the application is an abuse of court process due to prior adjudication and delay.
Ratio Decidendi
The court found that the application for substitution and to set aside the elders' award and consequential orders was without merit because the underlying application had already been heard and determined in 1995, with the court then finding inordinate delay and abuse of process. The decree had been executed and the estate distributed, and there was no objection to the award at the time. The court emphasized the principle that litigation must come to an end and that the current application was an attempt to resurrect a matter conclusively settled nearly three decades ago. Accordingly, the court dismissed the application in its entirety, finding no justification for reopening the matter.
Court Disposition
application dismissed
Orders
- The application dated 19th July 2024 is dismissed in its entirety.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
52 paragraphs
Koinange & 14 others v Koinange (Civil Case 66 of 1984) [2024] KEHC 13071 (KLR) (Civ) (18 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13071 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Case 66 of 1984
PM Nyaundi, J
October 18, 2024
Between
John Mbiyu Koinange
1st Applicant
Edwin Mbiyu Koinange
2nd Applicant
Noah Karuga Koinange
3rd Applicant
Wilfred Mbiyu Koinange
4th Applicant
Joseph Karuga Koinange
5th Applicant
James Njoroge Koinange
6th Applicant
Raymond Njoroge Koinange
7th Applicant
Leonard Karuga Koinange
8th Applicant
Godfrey Tharuba Koinange
9th Applicant
Wanjiru Gathiomi Koinange
10th Applicant
Nyambura Mbiyu Koinange
11th Applicant
Joyce Kagendo Koinange
12th Applicant
Phyllies Wambui Koinange
13th Applicant
Elizabeth Gathoni Koinange
14th Applicant
Annastasia Wanjiru - Representing Estate of the 4th Applicant
15th Applicant
and
Charles Karuga Koinange
Respondent
Ruling
1. This ruling relates to Summons dated 19th July 2024 presented under Article 159 (2)(d) of the Constitution of Kenya, Sections (sic) 59,63 and 73 of the Probate and Administration Rules, Sections 1A,1B and 3A of the Civil Procedure Act and Order 1 Rules 10 (2) and 25 of the Civil Procedure Rules.
2. The 4th Applicant having died, the Applicant seeks to substitute him as a party herein. She is the Administrator of his estate. Consequent to this prayer being granted she seeks that the Court be pleased to hear Application dated 3rd November 1993 and set aside the Elders award adopted on May 1992.
3. She also seeks to set aside the ruling of the Court delivered on 30th December 1992 pursuant to decree issued on 9th June 1992 alongside the consequential orders.
4. The basis of the Application is that the 4th Applicant’s Application dated 3rd November 1993 has not been heard. The Applicant invokes the Courts inherent powers to deliver substantial justice without having undue regard to technicalities.
5. To avail herself of the exercise of the Courts discretion in her favour, the Applicant has to meet the first hurdle which is the justifiability of her application. However, her contention that the Application dated 3rd November 1993 has not been prosecuted is not true. On 2nd November 1995, the Court delivered its ruling on that application after the Applicant argued it on 18th July 1995.
6. The Court noted that there was delay in presenting that application as the decree had already been executed and estate distributed. There was inordinate delay on the part of the Applicant. The Court further observed that there was no objection to the award at the time. The Court then reiterated one of the tenets of our justice system, which is that litigation must come to an end and categorically stated that the Application was an abuse of the Court Process. Leave was granted to appeal, it appears the Applicant then, did not pursue the appeal.
7. Clearly, this is therefore an attempt by the Applicant herein to resurrect a matter that was laid to rest almost 29 years ago. I have no hesitation in dismissing the application as lacking merit.
8. The Application dated 19th July 2024 is dismissed in its entirety, there shall be no order as to costs.File closed. It is so ordered
SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 18TH DAY OF OCTOBER, 2024. P. NYAUNDIJUDGEIn presence of: -Fardosa Court Assistant.......................Advocate for Applicant......................Advocate for Respondent