Wainaina v Wainaina [2023] KEHC 27405 (KLR)

Wainaina v Wainaina (Civil Appeal 169 of 2019) [2023] KEHC 27405 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27405 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 169 of 2019

DO Chepkwony, J

November 21, 2023

Between

Rachael Nduta Wainaina

Appellant

and

Abraham Njoroge Wainaina

Respondent

Ruling

1. The Appellant herein filed Notice of Withdrawal dated 24th September, 2023 under Order 25 Rule 1 of the Civil Procedure Rules 2010 seeking to withdraw the whole Appeal filed vide a Memorandum of Appeal dated 30th October, 2019. On 26th September, 2022 when the matter came up for the withdrawal of the appeal, a dispute arose on the issue of costs, and which is the subject of this ruling.

2. Ms Kibebo, Counsel for the Appellant submitted that the matter arises from a Succession Cause which involves several beneficiaries. He holds that the reasons for the withdrawal of the Appeal was because the parties could not agree on the mode of distribution of the estate that was ordered by the trial court in Githunguri. She went on to state that proceeding with the Appeal would cause acrimony in the estate. According to the Counsel, her wish is to have the matter taken back to Githunguri for litigation so that the issue of distribution can be addressed. She then contends that since this is a family matter, no costs should arise.

3. Mr. Gakaria holding brief for Mr. Ndungu, Counsel for the Respondent, stated that his client had incurred a lot of costs in the matter especially since the matter had been taken for Mediation which was unsuccessful and he therefore insists on being paid costs.

4. In rejoinder, M/S Kibebo stated that the court should be guided by the proceedings of the suit. She stated that she was representing all the beneficiaries of the estate apart from Mr. Gakaria’s client and that her clients had agreed on the mode of distribution apart from one acre of land from which Mr. Gakaria’s client wanted a bigger share.

Analysis and Determination 5. The court has had a chance to go through the original proceedings before the trial court and the Record of Appeal filed herein and established that the Appellant herein had Petitioned and was issued with Grant of Letters of Administration of the Estate of Wainaina Kinyanjui in the Trial court at Githunguri. The Respondent herein filed Summons for Revocation of the Grant in which the Trial court delivered its Ruling and revoked the Grant on 17th October, 2019. The trial court further tasked all the beneficiaries of the Estate of the deceased to agree on one more person to whom grant should issue to co-administer the estate together with the Appellant. This prompted the filing of the present Appeal in which the court issued Directions for filing of submissions and fixed the same for highlighting.

6. However, the court notes that the parties informed the court of a likelihood of recording a settlement for which the court issued further mention dates for parties to negotiate. The matter was then referred to Mediation which was unsuccessful and the matter was brought back to this court and finally the Appellant filed the Notice of Withdrawal of the Appeal. A dispute has then arisen on whether or not the appeal should be dismissed with costs.

7. On the issue of costs, the general position is that costs should follow the event. However , despite the positions being held by the parties herein, it is evident that this is a succession matter which involves brothers and sisters or rather children of the deceased person being the late Wainaina Kinyanjui. It is trite that the courts have taken the position that in family matters, each party should bear their own costs, I am thus inclined to direct the same in this case.

8. In the circumstances, this court hereby marks the Appeal as withdrawn pursuant to the Notice of Withdrawal of Appeal dated 24th September, 2023. Each party to bear its on costs.

9It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 21ST DAY OF NOVEMBER , 2023. D. O. CHEPKWONYJUDGEIn the presence of:M/S Kibebo counsel for the AppellantNo appearance for and by the RespondentCourt Assistant - Martin