[2017] KEHC 7272 (KLR)
The court found that the application to amend the Notice of Motion was meritorious as it sought only to clarify the relief being pursued, namely, the dismissal for want of prosecution of the Interested Party's application and not the entire succession cause. No prejudice would be occasioned to the respondent by...
Source-derived case information.
- Citation
- [2017] KEHC 7272 (KLR)
- Parties
- Applicant: Esther Andiego; Applicant: Joshua O. Otieno; Applicant: Christopher Olang; Applicant: Samwel Owiti; Respondent: Henry Owiti Obala
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 256 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application to Amend Notice of Motion
- Outcome
- application for leave to amend notice of motion allowed
- Judges
- EM Muchoki
- Legal Topics
- Amendment of Pleadings, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Andiego
Applicant
Joshua O. Otieno
Applicant
Christopher Olang
Applicant
Samwel Owiti
Applicant
Henry Owiti Obala
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Amend Notice of Motion
Legal Issues
- 1 Whether the applicant should be granted leave to amend the Notice of Motion dated 8th December 2015 to clarify the relief sought.
- 2 Whether the amendment would prejudice the Interested Party/Respondent.
Ratio Decidendi
The court found that the application to amend the Notice of Motion was meritorious as it sought only to clarify the relief being pursued, namely, the dismissal for want of prosecution of the Interested Party's application and not the entire succession cause. No prejudice would be occasioned to the respondent by allowing the amendment. The court exercised its discretion to grant leave to amend, directed timelines for filing and serving the amended application and responses, and set the matter for oral hearing. The costs of the application were ordered to be in the cause.
Court Disposition
application for leave to amend notice of motion allowed
Orders
- Leave to amend the Notice of Motion dated 8th December 2015 is granted.
- The amended application shall be filed and served upon the Interested Party within fourteen (14) days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
SUCCESSION CAUSE NO. 256 OF 2013
IN THE MATTER OF ESTATE OF EZEKIEL ATIENO SIDIGU (DECEASED)
AND
IN THE MATTER OF AN APPLICATION BY
ESTHER ANDIEGO
JOSHUA O. OTIENO
CHRISTOPHER OLANG
SAMWEL OWITI........................................................PETITIONERS
AND
HENRY OWITI OBALA.......INTERESTED PARTY/RESPONDENT
RULING
I have considered the Notice of Motion dated 24th October 2016. The same merely seeks to amend a Notice of Motion dated 8th December 2015 so as to reflect that what the applicant wished to have dismissed for want of prosecution is not the entire cause but the “Interested Party's” application in the Chamber Summons dated 23rd October 2013. The application has merit and leave to amend is allowed. The amended application be filed and served upon the so called Interested Party within fourteen (14) days. The said Interested Party shall then have three days to file and serve his replying affidavit and thereafter the Applicant shall file and serve a further affidavit (if need be) within three (3) days without waiting to come and seek leave. The Notice of Motion as amended shall then be canvassed orally on 27th March 2017. The costs of this application be in the cause. It is so ordered.
Signed, dated and delivered in open Court this 9th day of March 2017
E. N. MAINA
JUDGE
In the presence of:-
Christopher Olang
Serah Sidera – Interpreter1