[2016] KEHC 678 (KLR)
The court found that the Notice to Show Cause was defective because it failed to specify a particular date for the applicant to attend court. As a result, the dismissal of the cause based on such a notice was improper. The court held that compliance with procedural fairness requires that parties be given clear and...
Source-derived case information.
- Citation
- [2016] KEHC 678 (KLR)
- Parties
- Applicant: Robert Musyoki Kioka
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 651 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Reinstatement of Cause
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Reinstatement of Suit, Dismissal for Non Attendance, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Musyoki Kioka
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Reinstatement of Cause
Legal Issues
- 1 Whether the Notice to Show Cause issued was sufficiently specific to warrant dismissal of the cause for non-attendance.
- 2 Whether the applicant is entitled to reinstatement of the dismissed cause.
Ratio Decidendi
The court found that the Notice to Show Cause was defective because it failed to specify a particular date for the applicant to attend court. As a result, the dismissal of the cause based on such a notice was improper. The court held that compliance with procedural fairness requires that parties be given clear and specific notice before adverse action is taken. Consequently, the application for reinstatement was allowed, and the applicant was directed to set down the matter for confirmation of grant within sixty days.
Court Disposition
application allowed
Orders
- The application for reinstatement is allowed as prayed.
- The applicant is directed to set down the matter for Confirmation of Letters of Grant within sixty (60) days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 651 OF 2010
IN THE MATTER OF THE ESTATE OF KIOKO KILUU KILEI (DECEASED)
ROBERT MUSYOKI KIOKA ……………PETITIONER/APPLICANT
RULING OF THE COURT
1. The Notice of Motion application before the court is dated and filed herein on 13th July, 2016. It prays for an order reinstating the cause of action which was dismissed pursuant to a Notice to Show Cause which however was not specific as to which date the applicant was required to attend court to show cause.
2. The application is not opposed. I have looked at the Record. The Notice to Show Cause is dated 23rd day of June, 2015. The Notice states that the suit would be dismissed if the applicant did not show cause why it should not be dismissed between 6th – 25th July, 2015.
3. To say the least, that is not the kind of notice which when not complied with should lead to dismissal of a cause of action. The said Notice was bad in law, being non specific.
4. I therefore allow the application as prayed, and direct the applicant to set down the matter for Confirmation of Letters of Grant within sixty (60) days.
Order accordingly.
DATED AND DELIVERED AT MACHAKOS THIS 8THDAY OF DECEMBER, 2016.
……………………………………
E. OGOLA
JUDGE
In the presence of;
Mr. Mutune holding brief for Kisongee for Petitioner/Applicant
Court Assistant – Mr. Munyao