[2017] KEHC 8206 (KLR)
The court found that the application for confirmation of grant was unsigned by the applicant's advocate, rendering it procedurally defective and ordinarily liable to be struck out. However, invoking Article 159(2)(d) of the Constitution, the court exercised discretion to overlook the procedural defect in the...
Source-derived case information.
- Citation
- [2017] KEHC 8206 (KLR)
- Parties
- Applicant: Applicant (not named); Respondent: Grace Kigen Loitarem (Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 745 of 1992
- Procedural Posture
- Succession Cause / Ruling on Summons for Confirmation of Grant
- Outcome
- Application not determined; applicant directed to regularize the application by signing through counsel.
- Judges
- DN Musyoka
- Legal Topics
- Confirmation of Grant, Procedural Irregularities, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant (not named)
Applicant
Grace Kigen Loitarem (Deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Confirmation of Grant
Legal Issues
- 1 Whether the court can determine an unsigned application for confirmation of grant.
- 2 Whether procedural technicalities should defeat substantive justice in succession matters.
Ratio Decidendi
The court found that the application for confirmation of grant was unsigned by the applicant's advocate, rendering it procedurally defective and ordinarily liable to be struck out. However, invoking Article 159(2)(d) of the Constitution, the court exercised discretion to overlook the procedural defect in the interest of substantive justice. The applicant was directed to regularize the application by having it properly signed by counsel before further proceedings could be taken.
Court Disposition
Application not determined; applicant directed to regularize the application by signing through counsel.
Orders
- Applicant to authenticate and regularize the application by having it signed by her counsel.
- Deputy Registrar to mention the matter for further directions after regularization.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 745 OF 1992
IN THE MATTER OF THE ESTATE OF GRACE KIGEN LOITAREM (DECEASED)
RULING
1. The summons for determination dated 15th March 2013, seeks confirmation of the grant made herein on 2nd October 2001.
2. It has come to my notice that the copy of the application in the court file is not signed by the advocate for the applicant. I cannot determine it in that form. In fact I should strike it out.
3. I am, however, cognizant of Article 159(2) (d) of the Constitution of Kenya. I shall overlook the procedural technicality but require the applicant to authenticate and regularize the application by having it signed by her counsel.
4. Thereafter the Deputy Registrar shall cause the matter to be mentioned for further directions.
DATED, SIGNED and DELIVERED at NAIROBI this 20TH DAY OF JANUARY, 2017.
W. MUSYOKA
JUDGE