[2024] KEHC 4609 (KLR)
The court held that while an affidavit cannot be amended, the application itself was properly amended as a pleading. The existence of the appeal (HCCA No. 16 of 1992) was established by the court record, including the Memorandum of Appeal and a previous stay of execution order. However, due to constitutional...
Source-derived case information.
- Citation
- [2024] KEHC 4609 (KLR)
- Parties
- Applicant: John Agwenge Chumbe (Suing as the administrator to the Estate of the Late Alex Chumbe Omio); Respondent: Enos Karani Miyawa
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E022 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Amended Application Regarding Reconstruction and Transfer of Appeal File
- Outcome
- Application allowed in part; order for reconstruction and transfer of appeal file to Environment and Land Court.
- Judges
- RE Aburili
- Legal Topics
- Appeal Reconstruction, Jurisdiction Transfer, Stay of Execution, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Agwenge Chumbe (Suing as the administrator to the Estate of the Late Alex Chumbe Omio)
Applicant
Enos Karani Miyawa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Amended Application Regarding Reconstruction and Transfer of Appeal File
Legal Issues
- 1 Whether the amended application for reconstruction of the appeal file was properly before the court.
- 2 Whether the court has jurisdiction to determine the land dispute following constitutional changes.
- 3 Whether the existence of the appeal (HCCA No. 16 of 1992) is established.
Ratio Decidendi
The court held that while an affidavit cannot be amended, the application itself was properly amended as a pleading. The existence of the appeal (HCCA No. 16 of 1992) was established by the court record, including the Memorandum of Appeal and a previous stay of execution order. However, due to constitutional changes, the High Court's jurisdiction over land matters has been ousted and now vests in the Environment and Land Court. Therefore, the appropriate course is to order the reconstruction of the appeal file and its transfer to the Environment and Land Court for further directions.
Court Disposition
Application allowed in part; order for reconstruction and transfer of appeal file to Environment and Land Court.
Orders
- HCCA No. 16 of 1992 be reconstructed and the file as reconstructed be placed before the Environment and Land Court for directions.
- These proceedings and Ruling be typed.
Full Case Text
Judgment text and source record
25 paragraphs
Chumbe (Suing as the administrator to the Estate of the Late Alex Chumbe Omio) v Miyawa (Miscellaneous Application E022 of 2024) [2024] KEHC 4609 (KLR) (11 April 2024) (Ruling)
Neutral citation: [2024] KEHC 4609 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Application E022 of 2024
RE Aburili, J
April 11, 2024
Between
John Agwenge Chumbe (Suing as the administrator to the Estate of the Late Alex Chumbe Omio)
Applicant
and
Enos Karani Miyawa
Respondent
Ruling
1. From the documents filed in support of the application dated 22nd February 2024, an appeal was filed in this court being HCCA No. 16 of 1992, arising from Tamu DM Civil Miscellaneous Application No. 4 of 1989.
2. The appeal was filed by Alex Chumbe Choi and Okuto Chumbe. There is an amended application dated 3rd April 2024 enjoining the administrator of the estate of the Respondent Enos Karani Miyawa who has since died.
3. I have perused the application as amended and the Replying Affidavit of Andrew Matoka Okoko dated 9th April 2024 wherein he deposes that there is no evidence of the existence of Civil Appeal No. 16 of 1992 and that the amendments are in respect of the lower court file.
4. I observe that an affidavit cannot be amended. However, an application can be amended and was properly amended, as a pleading.
5. Order 51 Rule 1 of the Civil Procedure Rules does not mandate that an affidavit be filed in support of the application hence the amended affidavit though defective, does not invalidate the application as amended.
6. In addition, the existence of an appeal is a matter of fact and there is no doubt that HCCA No. 16 of 1992 was filed in this court vide Memorandum of Appeal dated 15th March 1992 and on 15th November 1994, Kuloba J issued a stay of execution order pending hearing and determination of the appeal.
7. There is no evidence that the appeal file has been traced.
8. I however note that the jurisdiction of this court in land matters, subject of the dispute between the parties, has since been ousted by Article 162 (2) (b) as read with Article 165 (5) (b) of the Constitution. This was after the appeal was filed.
9. In the premises, I find it appropriate to order that HCCA No. 16 of 1992 be reconstructed and the file as reconstructed be placed before the Environment and Land Court for directions on the way forward.
10. These proceeding and Ruling be typed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 11THDAY OF APRIL, 2024R. E. ABURILIJUDGE