In re Estate of Wuanga Oiye (Deceased) [2018] KEHC 7933 (KLR)

REPUBLIC OF  KENYA

IN THE HIGH COURT OF KENYA AT NAROK

SUCC CAUSE NO. 1 OF 2017

IN THE ESTATE OF WUANGA OIYE (DECEASED)

PHYLIS WANGUI OIYIE ……………….……………….PETITIONER

VERSUS

SAMANTE OLE OIYIE …………………....………………..OBJECTOR

RULING

1. On 16/11/2017, the petitioner instructed  her counsel to concede to the application for summons for revocation of the confirmed grant by the High Court (Ndung’u, J) which was issued by the High Court on 10/12/2015.  According to the petitioner, the said confirmed grant had not been executed.  Additionally, counsel  for the petitioner also submitted that there is in place Succession Cause No. 562 of 2011, which involves the same estate of Waunga Ole Oyie and is pending in this court for hearing and determination.  It was also her submission that Succession Cause No. 562 of 2011 had been filed earlier than the instant Succession Cause.  Finally, counsel submitted that the withdrawal of the  instant  Succession Cause will facilitate the hearing and disposal of Succession Cause No. 562 of 2011 in which all the issues raised will be determined.

2. The objector, conceded that the confirmed grant be revoked on condition that he be paid costs of this application.  He also submitted  the Kenya Gazette Notice No. 5629  of 22/7/2016 be cancelled.

3. In reply, Ms Maritim for the petitioner opposed the award of costs.  In doing so, she  submitted that the petitioner has similarly incurred costs in prosecuting this application.

4. I  have considered the rival submissions of both parties in the light of the applicable law.  I find that the award of costs is in the discretion of the court in terms of section 27 of the Civil Procedure Act (Cap 21) Laws of Kenya.  I also find that both parties are members of the same family.  Furthermore, the withdrawal of this application will facilitate the hearing and determination of the Succession Cause No. 562 of 2011.  I also find that both parties have incurred costs in the course of prosecuting this application.

5. In the light of the foregoing findings, I hereby decline to award costs to the objector.  Furthermore, I hereby revoke the confirmed grant dated 10/12/2015 that was issued by the High Court (Ndung’u, J).  And for that reason, it is a moot point to order the cancellation of the Kenya Gazette Notice No. 5629 of 22/7/2016.

6. The upshot of the foregoing is that this application is hereby withdrawn.

Ruling delivered in open court this 15th day of February, 2018 in the absence of both  parties.

J. M. Bwonwonga

Judge

15/2/2018