[2017] KEHC 6024 (KLR)
The court declined to determine the application dated 8th July 2016 because a referenced affidavit sworn on 24th August 2016 was not on record. The absence of this affidavit meant that the court did not have all the necessary evidence before it to make a just determination. The court held that it would not be just...
Source-derived case information.
- Citation
- [2017] KEHC 6024 (KLR)
- Parties
- Applicant: Dixon Simiyu Nyongesa (Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1074 of 2010
- Procedural Posture
- Succession Cause / Interlocutory Ruling; Application Pending Due to Missing Affidavit
- Outcome
- Ruling deferred; application not determined pending production of missing affidavit.
- Judges
- DN Musyoka, MW Muigai
- Legal Topics
- Probate and Administration, Missing Affidavit, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dixon Simiyu Nyongesa (Deceased)
Applicant
Procedural Posture
Succession Cause / Interlocutory Ruling; Application Pending Due to Missing Affidavit
Legal Issues
- 1 Whether the application dated 8th July 2016 can be determined in the absence of the affidavit sworn on 24th August 2016.
Ratio Decidendi
The court declined to determine the application dated 8th July 2016 because a referenced affidavit sworn on 24th August 2016 was not on record. The absence of this affidavit meant that the court did not have all the necessary evidence before it to make a just determination. The court held that it would not be just to proceed in the absence of the affidavit and therefore deferred the ruling until the affidavit is availed by the parties.
Court Disposition
Ruling deferred; application not determined pending production of missing affidavit.
Orders
- Finalization of the ruling is delayed until the missing affidavit sworn on 24th August 2016 is availed to the court.
- The matter shall be mentioned on a date to be fixed at the delivery of this ruling or at the registry.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1074 OF 2010
IN THE MATTER OF THE ESTATE OF DIXON SIMIYU NYONGESA (DECEASED)
RULING
1. The record before me is incomplete for there is an affidavit that appears to have been sworn on 24th August 2016 following the orders that I made on 26th July 2016. That affidavit is not on record, but is referred to in the affidavit sworn on 8th September 2016.
2. It would not be just for me to determine the application on record, dated 8th July 2016, without sight of the said affidavit. I shall accordingly delay the finalization of the ruling herein until such time that the parties avail to me a copy of the said affidavit.
3. The matter shall be mentioned on a date to be fixed at the date of the delivery of this short ruling, or at the registry.
DATED and SIGNED at NAIROBI this 3RD DAY OF MAY, 2017.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 5TH DAY OF MAY, 2017.
M. MUIGAI
JUDGE