[2012] KEHC 3198 (KLR)
The court found that the applicant's failure to attend court was not deliberate but was due to her medical condition, specifically breast cancer, as evidenced by a medical note. The application to reinstate was brought promptly, indicating diligence. There was no evidence that the respondent would suffer irreparable...
Source-derived case information.
- Citation
- [2012] KEHC 3198 (KLR)
- Parties
- Applicant: Mariasiano Mutiembu Everlyne; Respondent: Benjamin Nyongesa Muchwingi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 28 of 1998
- Procedural Posture
- Succession Cause / Ruling on Application to Reinstate Dismissed Application for Revocation of Grant
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Revocation of Grant, Right to Be Heard, Family Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mariasiano Mutiembu Everlyne
Applicant
Benjamin Nyongesa Muchwingi
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Reinstate Dismissed Application for Revocation of Grant
Legal Issues
- 1 Whether the applicant's failure to attend court was deliberate or excusable due to illness.
- 2 Whether the application to reinstate the dismissed application for revocation of grant should be allowed.
Ratio Decidendi
The court found that the applicant's failure to attend court was not deliberate but was due to her medical condition, specifically breast cancer, as evidenced by a medical note. The application to reinstate was brought promptly, indicating diligence. There was no evidence that the respondent would suffer irreparable loss or inconvenience that costs could not compensate if the application was allowed. The court emphasized that justice is best served when disputes are resolved on their merits rather than on technicalities. Accordingly, the application to reinstate the dismissed application for revocation of grant was allowed.
Court Disposition
application allowed
Orders
- The application to reinstate the dismissed application for revocation of grant is allowed.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE 28 OF 1998
IN THE MATTEROF THE ESTATE OFMANASEH NYONGESA MUCHWINGI-DECEASED
AND
BENJAMIN NYONGESA MUCHWINGI:::::::::::: PETITIONER/RESPONDENT
~VRS~
MARIASIANO MUTIEMBU EVERLYNE::::::::::::::::::::::::::::::::::::::: APPLICANT
RULING
On 8/3/2012 this court dismissed with costs the Applicant’s application dated 22/10/2010 for want of prosecution. The application had been brought seeking to revoke and/or annul the grant that was on 20/11/2008 issued to the Respondent in the Cause in respect of the estate of the deceased Manaseh Nyongesa Muchwingi. Her case was that the Respondent had secretly commenced the Cause and obtained the grant and in the process disinherited her and her son Protus Waswa Nyongesa in respect of land parcel no.Bungoma/Kabuyefwe/297 and yet she was the third widow to the estate and therefore entitled to benefit along with the son. This is a substantial claim.
The application was dismissed because she failed to attend to prosecute it. Directions had on 14/7/2011 been taken that her application be heard by the parties tendering oral evidence. She states that she is a cancer patient and was sick on the hearing day and was unable to attend. She say she suffers from breast cancer and attended hospital for treatment. The Respondent swore a replying affidavit to say that the Applicant was at home on the day in question and had not gone to hospital. Breast cancer is a serious condition. It is unlikely that a woman would state to court that she suffers from that condition when it is not true. She produced a note from Sirakaru Community Dispensary to say that she attends the dispensary on alternate days of the week for dressing. It states that she was breast cancer.
I accept that the Applicant’s failure to attend court was not deliberate but was due to having attended hospital attention relating to her medical condition. In any case, this application was brought 6 days following the dismissal of her matter. This demonstrates keenness to have her case heard.
It has not been alleged or shown that the Respondent will suffer such loss or inconvenience that costs cannot compensate, if the application is allowed. But more important, justice is better served when a dispute is resolved on merits.
I allow the application. This is a family dispute. I make no order as to costs.
Dated, signed and delivered at Bungoma this 5th day of July 2012.
A.O. MUCHELULE
JUDGE