[2021] KEHC 4014 (KLR)
The court found that the application for review was not supported by any valid affidavit, as the purported affidavit was neither signed nor commissioned. Without a valid affidavit, there was no evidence before the court to demonstrate any error apparent on the face of the record, discovery of new evidence, or other...
Source-derived case information.
- Citation
- [2021] KEHC 4014 (KLR)
- Parties
- Applicant: Adda Ndakala Handa; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 336 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Review
- Outcome
- application struck out
- Judges
- DN Musyoka
- Legal Topics
- Review Applications, Affidavit Requirements, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adda Ndakala Handa
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review
Legal Issues
- 1 Whether the application for review is valid in the absence of a properly signed and commissioned affidavit.
- 2 Whether a review application can be entertained without supporting evidence.
Ratio Decidendi
The court found that the application for review was not supported by any valid affidavit, as the purported affidavit was neither signed nor commissioned. Without a valid affidavit, there was no evidence before the court to demonstrate any error apparent on the face of the record, discovery of new evidence, or other sufficient reason to warrant review. The absence of evidence rendered the application fatally defective, and as such, there was no valid application before the court to determine. The court therefore struck out the application for want of compliance with procedural requirements regarding affidavits.
Court Disposition
application struck out
Orders
- The purported summons dated 27th July 2020 is struck out.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 336 OF 2008
IN THE MATTER OF THE ESTATE OF JOHNSTONE
HANDA MUTSEMBI alias JOHNSTONE HANDA (DECEASED)
RULING
1. The application for determination is the summons dated 27th July 2020. It is purportedly founded on an affidavit of one Adda Ndakala Handa, yet the said Adda Ndakala Handa has not signed the affidavit, and the same is not commissioned. Consequently, the application is not supported by any evidence, as the purported affidavit is not an affidavit at all.
2. A review application turns on whether there is an error apparent on the face of the record, or discovery of new important evidence, or other sufficient reason. Evidence is critical to demonstrate the error apparent on the face of the record, or the new material discovered, or the other sufficient reason that warrants the review sought. Without evidence, a review application cannot stand.
3. There is no valid application before me, to be determined. Consequently, I hereby strike out the purported summons dated 27th July 2020.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 17th DAY OFSEPTEMBER, 2021
W MUSYOKA
JUDGE