[2008] KEHC 3862 (KLR)
The court determined that due to the contentious nature of the dispute, the close relationship of the parties, and the fact that the original litigants had passed away, it was necessary for the matter to be heard by way of viva voce evidence. The court exercised its discretion under Order XXXIV of the Civil...
Source-derived case information.
- Citation
- [2008] KEHC 3862 (KLR)
- Parties
- Plaintiff: Benard Thuku; Plaintiff: Muiru Thuku; Defendant: Francis Njuguna Thuku; Defendant: Grace Wanjiru Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3565 of 1994
- Procedural Posture
- Civil Suit / Directions on Originating Summons
- Outcome
- Application for directions granted; suit to proceed by viva voce evidence; costs to applicant.
- Legal Topics
- Adverse Possession, Directions on Originating Summons, Substitution of Parties, Viva Voce Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Thuku
Plaintiff
Muiru Thuku
Plaintiff
Francis Njuguna Thuku
Defendant
Grace Wanjiru Njuguna
Defendant
Procedural Posture
Civil Suit / Directions on Originating Summons
Legal Issues
- 1 Whether the suit for adverse possession over LR Ndumberi/Tinganga/T165 should proceed by way of viva voce evidence.
- 2 Whether the substitution of parties due to death is proper and the suit can continue.
- 3 Whether affidavit evidence is sufficient in a contentious land dispute involving family members.
Ratio Decidendi
The court determined that due to the contentious nature of the dispute, the close relationship of the parties, and the fact that the original litigants had passed away, it was necessary for the matter to be heard by way of viva voce evidence. The court exercised its discretion under Order XXXIV of the Civil Procedure Rules to direct that the originating summons be treated as a plaint and the reply as a defence, thereby allowing for a full hearing with oral evidence. The absence of the respondent and their advocate, despite proper service, did not preclude the court from granting the directions sought by the applicant. Costs of the application were awarded to the applicant.
Court Disposition
Application for directions granted; suit to proceed by viva voce evidence; costs to applicant.
Orders
- The suit by way of originating summons shall be heard by viva voce evidence.
- The originating summons is to be treated as a plaint and the reply as a defence under Order XXXIV rule 10 Civil Procedure Rules.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 3565 of 1994
1. Land and Environmental Law Division
2. Civil Practice and Procedure – directions order XXXIV r 8a, 12 Civil Procedure Rules
3. Subject of main suit – Land
Adverse Possession
LR Ndumberi/Tinganga/T165
1. 7 acres
i) Reconstituted file
ii) Applicant claim land in trust of family
iii) Parties substituted on death
4. Application 9 January 2008
i) Direction under order XXXIV r 8A, 12 Civil
Procedure Rules
5. Directions by way of viva voce evidence
6. Case law – nil
7. Advocates:
C.N. Ngugi instructed by Mohammed and Kinyanjui & Co. Advocates for the plaintiff/applicant- present
Njoroge & Musyoka & Co. Advocates for the defendant/respondent - absent
BENARD THUKU ………………………………………… 1ST PLAINTIFF
MUIRU THUKU …………………………...……………….. 2ND PLAINTIFF
VERSUS
FRANCIS NJUGUNA THUKU ……………................1ST RESPONDENT
GRACE WANJIRU NJUGUNA ………..…………… 2ND RESPONDENT
RULING
DIRECTIONS ON ORIGINATING SUMMONS
ORDER XXXIV r 8a, 12 CIVIL PROCEDURE RULES
I: Background/Procedure
1. This is a reconstituted file. The original file went missing and has never been traced. The subject of the main suit is that of Land. It concerns a claim for Adverse Possession touching on land parcel LR Ndumberi/Tinganga/T165 for 1. 7 acres.
2. The parties were:-
Bernard M. Thuku ……. Applicant No.1
Muiru Thuku ………….. Applicant No. 2
Versus
Francis Njuguna Thuku the …. Respondent
3. Unfortunately the applicant No.1 and the respondent herein passed away. The suit abated against the 1st applicant. The second applicant continues to prove this suit. The respondent has since been substituted by Grace Wanjiru Njuguna the widow and legal representative of the respondent.
4. On the day called out for hearing of the application
9 January 2008, the advocates for the respondents were absent. The application proceeded for hearing under order IXb r 3a Civil Procedure Rules on this court being satisfied that the respondent was duly served but was absent.
II: Application 9 January 2008
5. The applicant prays that the suit by way of Originating Summons be heard by vivo voce evidence. The reason being that it is a contentious matter between the parties and affidavit evidence would not suffice.
6. I have noted from the proceeding that the parties are closely related to each other. That further the original litigants have since passed away.
7. I would therefore agree that there is need to hear this matter by way of vivo voce evidence. Under order XXXIV r 10 Civil Procedure Rules the Originating Summons would be treated as a plaint and the reply as a defence.
8. There will be costs of this application to the applicant to be paid by the respondent.
DATED THIS 10TH DAY OF APRIL 2008 AT NAIROBI.
M.A. ANGA’WA
JUDGE
C.N. Ngugi instructed by Mohammed and Kinyanjui & Co. Advocates for the plaintiff/applicant- present
Njoroge & Musyoka & Co. Advocates for the defendant/respondent - absent