[2017] KEHC 7615 (KLR)
The court found that the evidence regarding service of the hearing notice on the applicants' counsel was highly doubtful. Given the importance of succession matters and the need to resolve disputes on their merits, the court held that the dismissal order made on 03/05/2016 should be set aside. The Summons for...
Source-derived case information.
- Citation
- [2017] KEHC 7615 (KLR)
- Parties
- Applicant: Eunita Anyango Geko; Applicant: Esther Atieno Maucha; Respondent: Philip Obundu Orinda
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 28 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Summons for Revocation
- Outcome
- Application allowed; dismissal order set aside; summons for revocation reinstated.
- Judges
- AC Mrima
- Legal Topics
- Setting Aside Orders, Reinstatement of Suit, Service of Process, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunita Anyango Geko
Applicant
Esther Atieno Maucha
Applicant
Philip Obundu Orinda
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Summons for Revocation
Legal Issues
- 1 Whether the dismissal order made on 03/05/2016 for non-attendance should be set aside due to alleged non-service on the applicants' counsel.
- 2 Whether the Summons for Revocation dated 15/01/2013 should be reinstated for hearing on its merits.
Ratio Decidendi
The court found that the evidence regarding service of the hearing notice on the applicants' counsel was highly doubtful. Given the importance of succession matters and the need to resolve disputes on their merits, the court held that the dismissal order made on 03/05/2016 should be set aside. The Summons for Revocation dated 15/01/2013 was reinstated to allow the parties to be heard on the substantive issues. The court emphasized that justice would best be served by allowing the application and proceeding to hear the revocation summons on its merits.
Court Disposition
Application allowed; dismissal order set aside; summons for revocation reinstated.
Orders
- The Summons dated 20/05/2016 is allowed to the extent that the proceedings of 03/05/2016 are hereby set aside.
- The Summons for Revocation dated 15/01/2013 is hereby reinstated and parties shall fix the same for hearing before court today.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
MISC. APPLN (SUCCESSION CAUSE) NO. 28 OF 2015
(Formerly Kisii High Court Misc. No. 1 of 2013)
IN THE MATTER OF THE ESTATE OF GLADYS ODINGA ORINDA (DECEASED)
-BETWEEN-
EUNITA ANYANGO GEKO
ESTHER ATIENO MAUCHA....................................................OBJECTORS/APPLICANTS
-VERSUS-
PHILIP OBUNDU ORINDA............................................................................RESPONDENT
RULING
1. On 03/05/2016 the Applicants' Summons for Revocation dated 15/01/2013 which this Court had fixed for hearing was dismissed for non-attendance on the part of the Counsel for the Applicants as well as the Applicants.
2. The Applicants then filed the Summons dated 20/05/2016 seeking to set aside the orders made on 03/05/2016 on the main ground of non-service on the Applicants' Counsel. The application was supported by the two Affidavits sworn by Mr. Roch Odhiambo Counsel on 20/05/2016 and 08/08/2016 respectively.
3. The application was opposed through the Affidavit of the Respondent sworn on 02/06/2016.
4. The application was heard by way of oral submissions where Counsels expounded on their respective rival positions.
5. I have carefully considered the application on the background of the matter being a succession one where various interests are at stake. Looking at the hearing notice which was issued by this Court and was served through the Court's Process Server alongside the contents of all the affidavits on record and the submissions tendered, I have no doubt whatsoever that the dismissal order made on 03/05/2016 ought to be set-aside. This Court is convinced that any alleged service on the Applicants' firm of Advocates remain but highly doubtful. I therefore choose to hear the Summons for Revocation dated 15/01/2013 on its merit instead.
6. This Court now makes the following orders:
a) The Summons dated 20/05/2016 is allowed to the extent that the proceedings of 03/05/2016 are hereby set-aside;
b) The Summons for Revocation dated 15/01/2013 is hereby reinstated and since directions on its hearing had been taken, parties shall fix the same for hearing before Court today;
c) Costs of the application to abide the outcome of the Summons for Revocation dated 15/01/2013.
DELIVERED, DATED and SIGNED at MIGORI this 28th day of February 2017
A.C. MRIMA
JUDGE