[2017] KEHC 4973 (KLR)
The court held that the application by the interested party/applicant was incompetent because it was brought under provisions of the Civil Procedure Act and Rules that are not applicable to succession proceedings, as the Law of Succession Act is a self-contained code and only specific provisions of the Civil...
Source-derived case information.
- Citation
- [2017] KEHC 4973 (KLR)
- Parties
- Applicant: Julius Bwire Were; Respondent: Bonventure Anthony Mulwenge; Objector: Hendrica Anyango Were
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 237 of 2014
- Procedural Posture
- Probate and Administration / Ruling on Preliminary Objection to Notice of Motion
- Outcome
- application struck out as incompetent; preliminary objection sustained
- Judges
- KW Kiarie
- Legal Topics
- Applicability of Civil Procedure Act, Succession Proceedings, Competency of Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Bwire Were
Applicant
Bonventure Anthony Mulwenge
Respondent
Hendrica Anyango Were
Objector
Procedural Posture
Probate and Administration / Ruling on Preliminary Objection to Notice of Motion
Legal Issues
- 1 Whether the application by the interested party was competent under the Law of Succession Act.
- 2 Whether provisions of the Civil Procedure Act and Rules apply to succession proceedings.
Ratio Decidendi
The court held that the application by the interested party/applicant was incompetent because it was brought under provisions of the Civil Procedure Act and Rules that are not applicable to succession proceedings, as the Law of Succession Act is a self-contained code and only specific provisions of the Civil Procedure Act are imported by Rule 63. Since the provisions relied upon by the applicant were not among those imported, the application was fatally defective and could not be sustained. The preliminary objection was upheld, resulting in the striking out of the application and the ex parte orders issued pursuant to it.
Court Disposition
application struck out as incompetent; preliminary objection sustained
Orders
- The application dated 18th October 2016 is struck out.
- The ex parte orders issued in pursuit of the application are set aside.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO. 237 OF 2014
IN THE ESTATE OF PHILIP WERE SIOKA.......................DECEASED
AND
BONVENTURE ANTHONY MULWENGE .......................PETITIONER
AND
HENDRICA ANYANGO WERE..........................................OBJECTOR
VERSUS
JULIUS BWIRE WERE..............INTERESTED PARTY/ APPLICANT
RULING
JULIUS BWIRE WERE,the interested party/ applicant herein, moved the court by way of Notice of Motion dated 18th October 2016. It was premised under sections 1A,1B, 3A and 63(e) of the Civil Procedure Act and Orders 40 and 50 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. He is seeking the following orders:
1. That the honorable court be pleased to set aside orders issued on 20th September 2016.
2. That the cost of this application be provided for.
The petitioner /respondent on 14th February 2017 gave a notice of preliminary objection on ground that the application by the interested party was incompetent for it was filed in a manner contrary to the applicable law. My attention was brought the decision in PRISCILLA VUGUTSA KAMALIKI V MARY RUNYANYI OCHIENG [2016] eKLRwhere Judge Nekoye Sitati observed as follows:
The first issue for this Court to determine is whether the instant application is properly before the Court. The application is expressed to be brought under Section 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act Order 40 Rule 4 and Order 51 Rule 1 of the Civil Procedure Rules. It is worth noting that the Law of Succession Act is a self-contained Act and provisions of the Civil Procedure Act, unless specifically imported into it are not applicable. A look at Rule 63 of the
Law of Succession Act reveals that the provisions under which the present application is brought are not some of the provisions imported into the Law of Succession Act. What this means therefore is that the instant application is incompetent for want of form and is therefore fit for striking out.
In the instant application, similar situation obtain. I wholly agree with the learned judge. I therefore sustain the objection. The effect of this is to strike out the application dated 18th October 2016 together with the orders that were issued ex parte in pursuit of the application.
The interested party/applicant may be at liberty to file a competent application if he so wishes.
Costs be in the cause.
DELIVEREDandSIGNEDatBUSIAthis20thdayof June, 2017
KIARIE WAWERU KIARIE
JUDGE