[2019] KEHC 8133 (KLR)
The court held that an application in a succession cause must be supported by an affidavit, as the affidavit constitutes the evidence upon which the claim is based. The absence of such an affidavit is a fatal defect that cannot be cured by subsequent affidavits or by invoking Article 159(2)(d) of the Constitution....
Source-derived case information.
- Citation
- [2019] KEHC 8133 (KLR)
- Parties
- Applicant: Robert Mutwiri Paulo; Applicant: Ruth Nkatha Rukaria; Respondent: Esther Kathao Mboroki; Respondent: Erah Tirindi Gatobu; Respondent: Sarah Kiende Mboroki; Respondent: Jackline Ntinyari Kare; Respondent: Edward Mwaki Riungu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 112 of 2008
- Procedural Posture
- Succession Cause / Ruling on Preliminary Application
- Outcome
- application struck out with leave to file afresh
- Judges
- F Gikonyo
- Legal Topics
- Affidavit Requirements, Succession Procedure, Probate and Administration, Application Striking Out
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Mutwiri Paulo
Applicant
Ruth Nkatha Rukaria
Applicant
Esther Kathao Mboroki
Respondent
Erah Tirindi Gatobu
Respondent
Sarah Kiende Mboroki
Respondent
Jackline Ntinyari Kare
Respondent
Edward Mwaki Riungu
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Application
Legal Issues
- 1 Whether an application in a succession cause can stand without a supporting affidavit.
- 2 Whether subsequent affidavits can cure the defect of an application filed without a proper affidavit.
- 3 Whether Article 159(2)(d) of the Constitution can be invoked to save a fatally defective application.
Ratio Decidendi
The court held that an application in a succession cause must be supported by an affidavit, as the affidavit constitutes the evidence upon which the claim is based. The absence of such an affidavit is a fatal defect that cannot be cured by subsequent affidavits or by invoking Article 159(2)(d) of the Constitution. The court emphasized that procedural requirements serve a substantive purpose in ensuring that claims are properly grounded in evidence. Consequently, the defective application and all subsequent affidavits were ordered expunged from the record. However, in the interest of justice, the court allowed the applicant to file a fresh, proper application within 21 days in compliance...
Court Disposition
application struck out with leave to file afresh
Orders
- The application dated 29/7/2013 is struck out as defective and incompetent.
- All subsequent affidavits are expunged from the record.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCC NO. 112 OF 2008
IN THE MATTER OF THE ESTATE OF MISHECK M’MBOROKI – DECEASED
ROBERT MUTWIRI PAULO.........................1ST APPLICANT
RUTH NKATHA RUKARIA.........................2ND APPLICANT
VS
ESTHER KATHAO MBOROKI..............1ST RESPONDENT
ERAH TIRINDI GATOBU......................2ND RESPONDENT
SARAH KIENDE MBOROKI................3RD RESPONDENT
JACKLINE NTINYARI KARE..............4TH RESPONDENT
EDWARD MWAKI RIUNGU.................5TH RESPONDENT
RULING
I have considered all rival submissions. I agree with Kimaita, M/s Kiome and Wamache that an affidavit where it is required serves an important role in adjudication of cases. It provides the grounds upon which the application is premised; it provides the application the foot on which to stand. The affidavit in succession cause is the evidence of the claimants claim and cannot be wished away or depreciated by article 159 (2) (d) of the Constitution. A wise litigant faced with such dilemma as here would quickly withdraw the offending application and file a proper application so as to save time and expedite determination of his claim. Accordingly, I find the application dated 29/7/2013 to be utterly defective and incompetent. Such application cannot be cured by any amount of subsequent affidavits. I therefore order that the said application as well as all subsequent affidavits to be expunged from record. I however recognize the dictates of justice to hear parties on merit and so order that the applicant shall file and serve proper application that complies with Rule 44 of the P&A Rules in 21 days.
It is so ordered.
Mention on 29/5/2019.
Dated, signed and delivered this 29th day of April 2019.
...........................................
F. GIKONYO
JUDGE