[2015] KEHC 3315 (KLR)
The court held that it would be unjust to determine the application dated 5th October 2003 without the affidavits referred to by the respondent, or at least without giving the respondent an opportunity to produce them if they had indeed been filed. The absence of these affidavits from the court record means that the...
Source-derived case information.
- Citation
- [2015] KEHC 3315 (KLR)
- Parties
- Applicant: Catherine Mutinda Nzomo; Respondent: Rose Mwikali Ndisya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 911 of 2003
- Procedural Posture
- Succession Cause / Interlocutory Ruling
- Outcome
- determination_deferred
- Judges
- DN Musyoka
- Legal Topics
- Succession Proceedings, Missing Affidavits, Probate Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Mutinda Nzomo
Applicant
Rose Mwikali Ndisya
Respondent
Procedural Posture
Succession Cause / Interlocutory Ruling
Legal Issues
- 1 Whether the application dated 5th October 2003 can be determined in the absence of certain affidavits allegedly filed by the respondent.
- 2 Whether justice requires affording the respondent an opportunity to avail the missing affidavits before determination.
Ratio Decidendi
The court held that it would be unjust to determine the application dated 5th October 2003 without the affidavits referred to by the respondent, or at least without giving the respondent an opportunity to produce them if they had indeed been filed. The absence of these affidavits from the court record means that the court does not have all the material evidence necessary for a fair determination. Therefore, the court deferred the determination of the application and directed that the matter be mentioned for further directions, ensuring that both parties have a fair opportunity to present their evidence.
Court Disposition
determination_deferred
Orders
- The matter shall be mentioned on a date to be given at the delivery of the ruling for further directions.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 911 OF 2003
IN THE MATTER OF THE ESTATE OF JAMES NZOMO MWEU (DECEASED)
CATHERINE MUTINDA NZOMO ……………………..……….. APPLICANT
V E R S U S
ROSE MWIKALI NDISYA ……………………………………… RESPONDENT
RULING
The application I am called upon to determine is dated 5th October 2003.
In the course of preparing the ruling thereon, I have established from the written submissions filed on behalf of Rose Mwikali Ndisya that there were affidavits referred to in those submissions as having been allegedly filed in court on behalf of the said party. Those affidavits are not in the record in my possession.
The affidavits in issue are:-
The affidavit of Lawrence Mbuvi sworn on 22nd May 2009;
The affidavit of Tonny Mutua Mweu sworn on 22nd May, 2009;
The affidavit of Sarah W. Mweu sworn on 22nd May 2009;
The affidavit of Paul Mutisya Kioko sworn on 22nd May 2009; and
The affidavit of Joseph Musyoki Mweu sworn on 13th May 2009.
It would not work justice to the parties herein if I proceed to determine the application dated 5th October 2003 without those said affidavits or at any rate without affording the affected party opportunity to avail the same if indeed the said depositions had been filed and should be forming part of the court record.
The matter shall be mentioned on a date to be given at the delivery of the ruling for further directions.
DATED, SIGNED and DELIVERED at NAIROBI this 31ST DAY OF JULY, 2015.
W. MUSYOKA
JUDGE