[2020] KEHC 2426 (KLR)
The court determined that the objection to the grant in the estate of Alfred Odote Angeto involves contested facts that cannot be adequately resolved through affidavit evidence alone. To ensure a fair hearing, the court directed that the matter proceed by way of viva voce evidence, with the applicants/objectors...
Source-derived case information.
- Citation
- [2020] KEHC 2426 (KLR)
- Parties
- Applicant: Gaudensia Akinyi Aluoch; Applicant: Raphael Otieno Aluoch; Respondent: Achieng Angeto Owanda; Defendant: Kennedy Atalitsa Majani
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 662 of 2008
- Procedural Posture
- Succession Cause / Directions Before Hearing of Objection Proceedings
- Outcome
- Directions issued for viva voce hearing; interim injunction granted restraining eviction.
- Judges
- TW Cherere
- Legal Topics
- Succession Disputes, Objection Proceedings, Interlocutory Injunctions, Eviction Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gaudensia Akinyi Aluoch
Applicant
Raphael Otieno Aluoch
Applicant
Achieng Angeto Owanda
Respondent
Kennedy Atalitsa Majani
Defendant
Procedural Posture
Succession Cause / Directions Before Hearing of Objection Proceedings
Legal Issues
- 1 Should the objection to the grant in the estate of Alfred Odote Angeto be determined by affidavit or oral evidence.
- 2 Are the applicants entitled to interim protection from eviction from the disputed property pending determination of the objection.
Ratio Decidendi
The court determined that the objection to the grant in the estate of Alfred Odote Angeto involves contested facts that cannot be adequately resolved through affidavit evidence alone. To ensure a fair hearing, the court directed that the matter proceed by way of viva voce evidence, with the applicants/objectors treated as plaintiffs and their affidavits as the plaint, and the interested party as defendant with his affidavit as the defence. Additionally, the court found that the interests of justice require the applicants/objectors to be protected from eviction from the disputed property (KISUMU/WATHOREGO/680) pending the hearing and determination of the objection. Accordingly, the...
Court Disposition
Directions issued for viva voce hearing; interim injunction granted restraining eviction.
Orders
- The matter shall be determined by way of viva voce evidence.
- The 1st and 2nd applicants/objectors shall be the plaintiffs; their affidavits sworn on 24.01.2020 shall serve as the plaint.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO. 662 OF 2008
IN THE MATTER OF THE ESTATE OF ALFRED ODOTE ANGETO (DECEASED)
BETWEEN
GAUDENSIA AKINYI ALUOCH ............................................1STAPPLICANT/OBJECTOR
RAPHAEL OTIENO ALUOCH .............................................2NDAPPLICANT/OBJECTOR
AND
ACHIENG ANGETO OWANDA ............................................PETITIONER/RESPONDENT
AND
KENNEDY ATALITSA MAJANI........................................................INTERESTED PARTY
DIRECTIONS
1. I have considered the notice of motion amended on 24. 01. 2020 andfiled on 27. 01. 2020 by the 1st and 2nd Applicants/Objectors and the response by the Interested party and I have come to the conclusion that this is not a matter that ought to be determined by affidavit evidence.
2. It is therefore hereby ordered THAT:
1) This matter be determined by way of viva voce evidence
2) For the purpose of the hearing, the 1stand 2ndApplicants/Objectors shall be the plaintiffs and their affidavitsworn on 24. 01. 2020 shall be the plaint
3) The Interested party shall be the defendant and his replying affidavit sworn on 16. 09. 2020 and filed on 18. 09. 2020 shall be the defence
4) Parties shall file and exchange witness statements with each party having 21 days with the 1stand 2ndApplicants/Objectors starting
5) Mention on 30. 11. 2020 to confirm compliance and for direction as to the hearing of the Objection.
6) Further to the foregoing, this court finds that the interest of justice dictate that the Applicants/Objectors be protected from eviction from KISUMU/WATHOREGO/680 (the disputed property) pendingthe hearing and determination of this objection. The Interested Party is therefore restrained from interfering with the Applicants/Objectors occupation and use of KISUMU/WATHOREGO/680 (the disputed property) until these objection proceedings are determined or until other and/or further orders of the court.
DATED AT KISUMU THIS 21st DAY OF October 2020
T. W. CHERERE
JUDGE
Court Assistants - Ms. Amondi/Ms. Okodoi
For Objectors/Applicants - Ms. Owino for Anyango Owino & Co. Advocates
For Interested Party - Mr. Ragot for Owiti, Otieno & Ragot Advocates