[2020] KEHC 3155 (KLR)
The court found that the error in the land reference number in the application dated 14/01/2020 was apparent and unintentional, arising from a computer mistake. Since the subject matter of the succession cause is land parcel No. NYAKI/MUNITHU/327, it is necessary and just to allow the amendment to reflect the...
Source-derived case information.
- Citation
- [2020] KEHC 3155 (KLR)
- Parties
- Respondent: Sarah Kamenwa Magana; Objector: Mukomurimi M’Ituaruchiu; Interested Party: Samson Kibeteru; Interested Party: Silas Muriuki Ruter; Interested Party: Karwitha Kinaitore
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 167 of 1999
- Procedural Posture
- Succession Cause / Ruling on Application to Amend Summons
- Outcome
- application allowed
- Judges
- F Gikonyo
- Legal Topics
- Succession Procedure, Amendment of Pleadings, Probate and Administration, Rectification of Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Sarah Kamenwa Magana
Respondent
Mukomurimi M’Ituaruchiu
Objector
Samson Kibeteru
Interested Party
Silas Muriuki Ruter
Interested Party
Karwitha Kinaitore
Interested Party
Procedural Posture
Succession Cause / Ruling on Application to Amend Summons
Legal Issues
- 1 Whether the applicant should be granted leave to amend the summons dated 14/01/2020 to correct the land reference number.
- 2 Whether the error in the land reference number was material and if its correction is necessary for the determination of the real issue in controversy.
Ratio Decidendi
The court found that the error in the land reference number in the application dated 14/01/2020 was apparent and unintentional, arising from a computer mistake. Since the subject matter of the succession cause is land parcel No. NYAKI/MUNITHU/327, it is necessary and just to allow the amendment to reflect the correct land reference number. Denying the amendment would be contrary to Article 159 of the Constitution, which mandates courts to administer justice without undue regard to technicalities. The application was unopposed, and the amendment would facilitate the determination of the real issue in controversy. The court therefore allowed the application, deeming the draft amended...
Court Disposition
application allowed
Orders
- The application for leave to amend the summons dated 14/01/2020 is allowed.
- The draft amended summons is deemed duly filed subject to payment of the requisite court fee.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 167 OF 1999
In The Matter of the Estate of M’Irura M’Mungania (Deceased)
SARAH KAMENWA MAGANA .................... PETITIONER/RESPONDENT
-VS-
MUKOMURIMI M’ITUARUCHIU ..............................................OBJECTOR
SAMSON KIBETERU ...........................................1ST INTERESTED PARTY
SILAS MURIUKI RUTER................................... 2ND INTERESTED PARTY
KARWITHA KINAITORE.................................. 3RD INTERESTED PARTY
RULING
[1] I am considering a Summons dated 16/06/2020 expressed to be brought under Section 47 of the Law of Succession Act Rule 49, 63 and 73 of the Probate and Administration Rules and Article 159 of the Constitution. The applicant seeks leave to amend the summons dated 14/01/2020 in terms of the draft amended summons annexed thereto.
[2] The grounds upon which the application is grounded are set out in the application and the supporting affidavit of Silas Muriuki Ruteere sworn on 16/06/2020. It is contended that the subject matter which this court delivered judgment upon is L. R. No. NYAKI/MUNITHU/327. Notice of Appeal and application dated 14/01/2020 seeking interim orders was filed. However, the wrong reference number was quoted in the application dated 14/01/2020. It is necessary to amend the application to reflect the correct land reference number so that the real question may be determined. The error was not intentional but one arising from the use of the computer.
[3] This application was unopposed.
[4] The subject matter of this cause is land parcel No. NYAKI/MUNITHU/327 and not L. R. NTIMA/IGOKI/3473 as was indicated in the application dated 14/01/2020. It is apparent that an error was made. The error is readily discernible. It is therefore apt to allow the amendment to enable the court determine the real issue in controversy. In such circumstances, it would be egregious and against the provisions of Article 159 of the Constitution to deny court’s leave to amend and correct the error.
[5] Accordingly, on the basis of Article 159 of the Constitution, Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules I allow the application. The draft amended Summons is deemed to be duly filed subject to payment of the requisite court fee. No orders as to costs. It is so ordered.
Dated, signed and delivered at Meru this 22nd day of September, 2020
---------------------
F. GIKONYO
JUDGE
Representation
Muchiri for interested party/applicant
M/s Soy for respondent