[2023] KEHC 18601 (KLR)
The court found the explanation for non-attendance inadequate, as the affidavit was not sworn by the advocate who was allegedly exposed to Covid-19, and the applicant did not explain why he himself did not attend court. However, the court noted that the application was unopposed and that the matter concerned a...
Source-derived case information.
- Citation
- [2023] KEHC 18601 (KLR)
- Parties
- Applicant: Emmanuel Omuse Eloge; Respondent: Estate of Eloge Otibine (Deceased)
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 408 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Reinstatement of Dismissed Application
- Outcome
- application allowed
- Judges
- WM Musyoka
- Legal Topics
- Reinstatement of Application, Non Attendance, Want of Prosecution, Family Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Omuse Eloge
Applicant
Estate of Eloge Otibine (Deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Reinstatement of Dismissed Application
Legal Issues
- 1 Whether sufficient cause was shown to warrant reinstatement of the dismissed application.
- 2 Whether the explanation for non-attendance by the applicant and his advocate was adequate.
Ratio Decidendi
The court found the explanation for non-attendance inadequate, as the affidavit was not sworn by the advocate who was allegedly exposed to Covid-19, and the applicant did not explain why he himself did not attend court. However, the court noted that the application was unopposed and that the matter concerned a family estate. In the interests of justice and considering the unopposed nature of the application and the family context, the court exercised its discretion to allow the reinstatement of the application, despite the inadequacy of the explanation provided.
Court Disposition
application allowed
Orders
- The application for reinstatement is allowed.
- A date for hearing shall be given at the delivery of this ruling.
Full Case Text
Judgment text and source record
13 paragraphs
In re Estate of Eloge Otibine (Deceased) (Succession Cause 408 of 2011) [2023] KEHC 18601 (KLR) (19 June 2023) (Ruling)
Neutral citation: [2023] KEHC 18601 (KLR)
Republic of Kenya
In the High Court at Busia
Succession Cause 408 of 2011
WM Musyoka, J
June 19, 2023
Ruling
1. The Motion, dated July 7, 2021, seeks reinstatement of an application, dated November 9, 2020, which was dismissed on June 8, 2021, for non-attendance and want of prosecution. It is brought at the instance of Emmanuel Omuse Eloge. He avers that his Advocate came into contact with a person who had Covid-19, on June 6, 2021, and he went into isolation, and was thus unable to attend court on June 8, 2021.
2. I do not find the explanation given adequate. Firstly, it was the Advocate who was exposed to Covid-19, why did he not swear the affidavit himself? The deponent could not have had personal knowledge of that, yet he does not disclose where he got that information, or how that came to his knowledge. Secondly, if the Advocate was unavailable for the alleged reasons, why did the deponent himself not attend court? I do not think that good reasons and excuses exist for the deponent and his Advocate not attending court.
3. However, I note that the application was served, but it was not responded to. It is unopposed. Secondly, this is a family matter. It is only for those reasons that I would allow the application, which I hereby do. A date for hearing shall be given at the delivery of this ruling.
4. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 19TH DAY OFJUNE 2023WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMr. Okeyo, instructed by Okeyo 0chiel & Company, Advocates for the applicant.succession cause no. 408 of 2011 – ruling 2