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|Case Number:||succ cause 692 of 94|
|Parties:||TIMOTHY B. GICHEHA) EUSTACE KIARIE) vs WANJIRU KANYOKO|
|Date Delivered:||16 Jan 2004|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||M Amin J|
|Citation:||TIMOTHY B. GICHEHA) EUSTACE KIARIE) vs WANJIRU KANYOKO eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
TIMOTHY B. GICHEHA…………………………………1ST APPLICANT
EUSTACE KIARIE………………………………………2ND APPLICANT
PERPETUAL WANJIRU KANYOKO…………………..RESPONDENT
The petitioner in this cause, Perpetual Wanjiru Kanyoko applied by way
of summons under Rules 5 and 73 of a P&A Rules for orders.
1. That the application dated 23rd December, 1999 by Timothy
Gicheha Muiruri and Eustace Kiarie be dismissed and or be
expunged from the record.
2. Secondly, the costs of the application be provided for.
The application is supported by the affidavit of Perpetual Wanjiru
Kanyoro. The application is grounded on the fact that the respondent has
since filing the application dated 23/12/1999 failed to take the necessary
action to fix it for hearing despite several reminders to do so. The applicants
attempted to fix the application for hearing but did not succeed as they were
informed that the application does not conform to the prescribed format.
The applicant is the petitioner and executrix of the will of the deceased
and the grant of probate was confirmed on 13/8/1998. She is apprehensive
that the witnesses she desires to call in support of her case are elderly and
frail and it is necessary that the application should be finalized expeditiously
and since the objectors have failed to take the necessary steps the application
by them dated 23/12/1999 should be dismissed. The objector did not file
any papers, they were represented by the firm of A.N.Ngunjiri represented
by Miss Munene who stated that the objectors have not been in contact with
their firm for the last two years and hence they had filed an application
seeking for leave to withdraw from acting for them. She requested the court
to allow them time to look for the objectors as it will be detrimental to them
if their application is dismissed without their knowledge.
I have considered this application carefully within parameters of Rule 73
that gives this court inherent powers to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the
Parties which file their matters in court should take initiative of
prosecuting the same. A party who has been sued in court is obviously kept
under suspense and anxiety. The courts should not be used as a weapon of
torture by some parties who want to harass others by taking them to court, I
find the applicants who filed an action about 4 years ago, and they have not
been in touch with their Advocates who are representing them for two years
to have lost interest in the application.
Accordingly, the continued pendancy of the application is an abuse of the
process, and therefore grant the application dated 8/7/2003 with costs as prayed.
Ruling read and signed on 16/1/2003.