[2015] KEHC 2571 (KLR)
The court held that the application for review dated 31st December 2012 does not warrant the taking of viva voce evidence at this stage. The proper mode of disposal is by way of oral arguments or written submissions, as is customary for review applications under Order 45 rule 1 of the Civil Procedure Rules. The...
Source-derived case information.
- Citation
- [2015] KEHC 2571 (KLR)
- Parties
- Applicant: __MISSING__; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 884 of 2010
- Procedural Posture
- Succession Cause / Interlocutory Application for Review
- Outcome
- Application for viva voce evidence declined; application to be heard by oral or written submissions.
- Judges
- DN Musyoka
- Legal Topics
- Succession Review, Application for Review, Civil Procedure Order 45, Viva Voce Evidence, Mode of Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
__MISSING__
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Review
Legal Issues
- 1 Whether the application for review should be disposed of by viva voce evidence or by oral/written submissions.
- 2 Whether the grounds for review under Order 45 rule 1 of the Civil Procedure Rules are satisfied.
Ratio Decidendi
The court held that the application for review dated 31st December 2012 does not warrant the taking of viva voce evidence at this stage. The proper mode of disposal is by way of oral arguments or written submissions, as is customary for review applications under Order 45 rule 1 of the Civil Procedure Rules. The court found no sufficient basis for departing from the usual procedure and directed that the application be argued in the ordinary way before any judge of the Family Division.
Court Disposition
Application for viva voce evidence declined; application to be heard by oral or written submissions.
Orders
- The application dated 31st December 2012 shall be argued by way of oral arguments or written submissions as may be directed.
- The application to be heard by any Judge of the Family Division on a date to be given at the registry.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 884 OF 2010
IN THE MATTER OF THE ESTATE OF HANNAH WANJIRU MWANIKI (DECEASED)
RULING
The pending application is dated 31st December 2012. It seeks review of an order made by Njagi J. on 3rd May 2012.
Although the application is for review premised on Order 45 rule 1 of the Civil Procedure rules, the applicant swore and filed an affidavit on 10th November 2014 asking to call a certain person as a witness. This necessitated that the matter go for directions on the mode of disposal of the said application.
Applications for review essentially target a decision in terms of having it reevaluated on the grounds set out in Order 45 rule 1 – error apparent on the face of the record, discovery of new important evidence that was not available at the time of trial and any other sufficient reason. Ideally, the instant application is ideal for disposal by way of oral or written submissions as opposed to the taking of viva voce evidence.
I do not see the basis upon which viva voce evidence is to be taken at this stage. I therefore direct that the application dated 31st December 2012 be argued in the usual way, by way of oral arguments or written submissions, as may be directed.
The application dated 31st December 2012 to be heard by any Judge of the Family Division on a date to be given at the registry.
DATED, SIGNED and DELIVERED at NAIROBI this 25TH DAY OF SEPTEMBER, 2015.
W. MUSYOKA
JUDGE