Case ID:163145

In re Estate of Samuel Kanyoni Gachoka alias Kanyoni Gachoka (Deceased) [2020] eKLR

Case Metadata

Case Number:

Probate Administration Appeal 23 of 2012

Parties:

In re Estate of Samuel Kanyoni Gachoka alias Kanyoni Gachoka

Date Delivered:

30 Jul 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Abida Ali-Aroni

Citation:

In re Estate of Samuel Kanyoni Gachoka alias Kanyoni Gachoka (Deceased) [2020] eKLR

Court Division:

Civil

County:

Nairobi

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

IN THE HIGH COURT AT NAIROBI

P&A APPEAL NO. 23 OF 2012

IN THE MATTER OF THE ESTATE OF SAMUEL KANYONI GACHOKA ALIAS KANYONI GACHOKA (DECEASED)

GEORGE GACHOKA KANYONI “B”

DAVID KINYANJUI KANYONI ...................................APPELLANTS

VERUS

GEORGE GACHOKA KANYONI “A”....................... RESPONDENT

RULING

1. The application subject of this ruling and dated 31

st

December, 2018 seeks to have the appeal dismissed for want of prosecution as the same was filed in 2012 and so far no memorandum of appeal has been served upon the respondent nor any steps taken in 6 years yet the trial court gave a stay.

2. I have considered the application and inasmuch as the same may be merited; firstly, there was no explanation why the application was served upon the Appellants yet they have a counsel on record, secondly it is not said how the process server identified them. Thirdly

Order 42 rule 35 (1)

requires that within 3 months after giving directions the appeal ought to be set down for hearing and if the appellant does not do so the respondent is at liberty to set it for hearing or apply for dismissal.

3. The

Order 42 rule 35(1)

presupposes that the appellant has filed the record and the court has given directions as to hearing. This is not the situation here as no record has been filed nor directions issued. The circumstances therefore militate against dismissal. However, Order 45

rule 35(2)

on the other hand gives the court the power to dismiss an appeal within a year of service of the memorandum of appeal. It has been 6 years since the memorandum was filed and the court can proceed to issue notice.

4. I decline to grant the prayers sought. However since the appellants after obtaining a stay went to slumber for 6 years denying the respondent fruits of a judgement in his favour which is totally unfair, I direct the Deputy Registrar to issue notice of dismissal of the appeal for want of prosecution and set the matter down at a date to be communicated to the parties.

Dated

and

Delivered

in

Nairobi

on this

30

TH

day of JULY, 2020.

ALI-ARONI

JUDGE