[2014] KEHC 5433 (KLR)
The court found that the application dated 23/6/2010 had been formally withdrawn on 23/6/2011 in the presence of counsel for the applicant and respondents, with no order as to costs. There was no subsequent application filed or any record of reinstatement. As a result, there was no live application before the court...
Source-derived case information.
- Citation
- [2014] KEHC 5433 (KLR)
- Parties
- Applicant: Samuel Mwangi Ndaburu; Respondent: Francis Gakono Giute; Respondent: Josphat Muriuki Mboyi; Respondent: Gabriel Lazarus Muthike Kiragu; Respondent: Hezron Muigai Waigwa
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 35 of 2006
- Procedural Posture
- Miscellaneous Application / Application Withdrawn Prior to Ruling
- Outcome
- application withdrawn; no ruling issued
- Legal Topics
- Withdrawal of Application, Court Record Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mwangi Ndaburu
Applicant
Francis Gakono Giute
Respondent
Josphat Muriuki Mboyi
Respondent
Gabriel Lazarus Muthike Kiragu
Respondent
Hezron Muigai Waigwa
Respondent
Procedural Posture
Miscellaneous Application / Application Withdrawn Prior to Ruling
Legal Issues
- 1 Whether the court can issue a ruling on an application that has been withdrawn.
- 2 Whether there is any application pending before the court for determination.
Ratio Decidendi
The court found that the application dated 23/6/2010 had been formally withdrawn on 23/6/2011 in the presence of counsel for the applicant and respondents, with no order as to costs. There was no subsequent application filed or any record of reinstatement. As a result, there was no live application before the court upon which a ruling could be made. The court therefore declined to write a ruling, holding that it lacked jurisdiction to determine a withdrawn application and that the matter was concluded by the withdrawal.
Court Disposition
application withdrawn; no ruling issued
Orders
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. SUCC. NO.35 OF 2006
IN THE MATTER OF AN APPLICATION BY JAVAN MWARARI GIKUNJU MUGWE (DECEASED)
SAMUEL MWANGI NDABURU ................................................................................................APPLICANT
VERSUS
FRANCIS GAKONO GIUTE …………......………………………………............... 1ST RESPONDENT
JOSPHAT MURIUKI MBOYI ………………...…………………………………….. 2ND RESPONDENT
GABRIEL LAZARUS MUTHIKE KIRAGU ……....………………………………. 3RD RESPONDENT
HEZRON MUIGAI WAIGWA ……………………………………………………. 4TH RESPONDENT
OBSERVATION BY THE COURT
The Counsels herein agreed to file and exchange written submissions in an application dated 23/6/2010. However on perusal of the Court record I have noted that on 23/6/2011 before Justice Muchelule and in the presence of Mr. Magee advocate and Mr. Kariithi advocate the application dated 23/6/2010 was withdrawn. The record states as follows;
“On request of Mr. Kariithi application dated 23/6/2010 is hereby marked withdrawn with no order as to costs”.
The record that follows does not anywhere reinstate the application. And there is no other application filed thereafter. I am therefore unable to write any Ruling on an application that was withdrawn. In other words there is no application before me for purposes of writing a Ruling.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 4TH DAY OF APRIL 2014.
H.I. ONG’UDI
J U D G E
In the presence of
M/s Wairimu for Kariithi for Applicant
N/A for or by Respondents
Njue – C/c