[2017] KEHC 2214 (KLR)
The court found that it was unable to determine the preliminary objection filed on 15th July 2016 because the parties failed to provide the necessary documents, despite being given time and direction to do so. The applicant only provided an affidavit of service, which was insufficient, and the party who filed the...
Source-derived case information.
- Citation
- [2017] KEHC 2214 (KLR)
- Parties
- Applicant: Mr. Donald; Respondent: Unnamed party who filed the preliminary objection
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1577 of 2006
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- DN Musyoka
- Legal Topics
- Preliminary Objection, Case Management, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mr. Donald
Applicant
Unnamed party who filed the preliminary objection
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection filed on 15th July 2016 could be determined in the absence of supporting documents.
- 2 Whether the court should dismiss the preliminary objection due to failure by the parties to provide necessary documents.
Ratio Decidendi
The court found that it was unable to determine the preliminary objection filed on 15th July 2016 because the parties failed to provide the necessary documents, despite being given time and direction to do so. The applicant only provided an affidavit of service, which was insufficient, and the party who filed the objection did not provide any documents at all. The court held that it could not allow the matter to remain unresolved due to the parties' inaction and therefore dismissed the preliminary objection for want of prosecution and lack of supporting documentation.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection filed on 15th July 2016 is dismissed.
- The parties are directed to obtain a date for the disposal of the pending matters.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1577 OF 2006
IN THE MATTER OF THE ESTATE OF MARTIN LUTHER AWUOR (DECEASED)
RULING
1. I delivered a ruling on 12th May 2017, wherein is stated that I was unable to determine a preliminary objection filed herein on 15th July 2016 as the primary documents upon which it was premised were not in the record before me. I directed the parties to place on the record copies of the said documents.
2. The matter was mentioned on 5th June 2017. Mr. Donald, the applicant, indicated that he had only been able to get a copy of an affidavit of service. The party who filed the preliminary objection did not furnish me with any documents to facilitate determination of her objection. I have perused through the document placed before me by Mr. Donald. It is of no help to me in terms of providing the background I need to determine the preliminary objection. I am unable to move forward.
3. I have given the parties time to furnish me with the papers I need to decide the preliminary objection. They appear unwilling to help the court in that regard. This matter cannot be in limbo because of inaction by the parties. What I shall do is to dismiss the preliminary objection filed herein on 15th July 2016, bearing an even date.
4. Having disposed of the preliminary objection, I hereby direct the parties to move with speed and obtain a date for the disposal of the pending matters. It is so directed.
DATED, SIGNED and DELIVERED at NAIROBI this 19TH DAY OF OCTOBER, 2017.
W. MUSYOKA
JUDGE