[2009] KEHC 205 (KLR)
The court found that the supporting affidavit to the application for injunction was sworn by the second applicant without any authority from the first applicant, nor did it state that it was sworn on behalf of the first applicant. The absence of such authority rendered the affidavit incurably defective. As the...
Source-derived case information.
- Citation
- [2009] KEHC 205 (KLR)
- Parties
- Applicant: Acton Otieno Kola; Applicant: Richard Abera Kola; Respondent: Harrison Aseta Kola; Applicant: Jacob Homes Dalmas Oseto; Applicant: John Nyanjwa Ouma
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 265 of 2006
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection to Application for Injunction
- Outcome
- application struck out with costs
- Legal Topics
- Succession Proceedings, Grant Revocation, Preliminary Objection, Affidavit Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Acton Otieno Kola
Applicant
Richard Abera Kola
Applicant
Harrison Aseta Kola
Respondent
Jacob Homes Dalmas Oseto
Applicant
John Nyanjwa Ouma
Applicant
Procedural Posture
Succession Cause / Ruling on Preliminary Objection to Application for Injunction
Legal Issues
- 1 Whether the application for injunction is fatally defective due to lack of authority for one applicant to swear affidavit on behalf of the other.
- 2 Whether the supporting affidavit is incurably defective and warrants striking out the application.
Ratio Decidendi
The court found that the supporting affidavit to the application for injunction was sworn by the second applicant without any authority from the first applicant, nor did it state that it was sworn on behalf of the first applicant. The absence of such authority rendered the affidavit incurably defective. As the application was supported by a fatally defective affidavit, the court struck out the application with costs, without considering the other grounds raised in the preliminary objection.
Court Disposition
application struck out with costs
Orders
- The application for injunction is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
Succession Cause 265 of 2006
IN THE MATTER OF THE ESTATE OF KOLA NYAKINDA..............DECEASED
AND
JACOB HOMES DALMAS OSETO )....................................................CITORS
2. JOHN NYANJWA OUMA )
-VERSUS-
HARRISON ASETA KOLA.........................................................................................CITEE
ACTON OTIENO KOLA )...................................................................APPLICANTS
2. RICHARD ABERA KOLA )
R U L IN G
On 23/5/2007 the Senior Resident Magistrate Homabay issued letters of administration in the estate of Kola Nyakindato the respondentHarrison Aseto Kola. On 1/7/2007 the applicantsJacton Otieno KolaandRichard Abera Kolafiled summons for Revocation of the grant claiming they were brothers to the respondent and sons to the deceased who were entitled to be included in the administration of the estate. On 24/11/2008 the parties appeared before my brother Justice Musinga and agreed that the applicants be included in the letters above as co-administrators. On 18/6/2009 the applicants filed the present application by way of summons underorder 39 rules 12Aand9 of the Civil Procedure Rulesandsections 3A and 63( c) of theCivil Procedure Actseeking a temporary injunction. In the Supporting Affidavit by 2 nd applicant he claimed that the respondent is cultivating parcelsKarachuonyo/Kamenya/1498andKanyamwa/Kabonyo/Kwandika/223, which are subject of the administration, without their consent. The second claim was that the respondent was selling the lands with a view to defeating the pending cause. The injunction was sought to restrain the respondent by himself, agents, servants and /or anyone claiming under him from reentering , trespassing onto, clearing the bush, cultivating with a mind of planting crops, or interfering with/or in any other manner whatsoever dealing with the suit lands which is under the process of succession. The respondent has raised a Preliminary Objection to the application. One issue raised is that the application is fatally defective . This is because it was brought by the two applicants one whom swore a Supporting Affidavit without the authority of the other. I have looked at the affidavit. It does not state it is sworn on behalf of the 1st applicant or with his authority. No authority was obtained from the 1st applicant. I find the affidavit is incurably defective. Consequently, the application is struck out with costs.
It is not necessary to deal with the other issues raised in the objection.
Dated, signed and delivered at Kisii this10th day of November, 2009.
A.O.MUCHELULE
JUDGE
10/11/2009
Before A.O.Muchelule-J
Mongare court clerk
Mr. Masese for Mr. Sagwe for applicant
COURT; Ruling in open court
A.O.MUCHELULE
JUDGE
10/11/2009