[2019] KEHC 4191 (KLR)
The court found that the applicant, having initially acted in person and now represented by counsel, should be allowed to amend his objection to ensure that the real issues are brought before the court. The application was unopposed, and there was no prejudice shown to the respondent. The court exercised its...
Source-derived case information.
- Citation
- [2019] KEHC 4191 (KLR)
- Parties
- Respondent: Simon Igulubera Imuka; Applicant: Philip Omuse Omanyala
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 212 of 2010
- Procedural Posture
- Probate and Administration / Ruling on Application to Amend Objection
- Outcome
- application allowed
- Judges
- KW Kiarie
- Legal Topics
- Succession Proceedings, Amendment of Pleadings, Probate Objection, Leave to Amend
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Igulubera Imuka
Respondent
Philip Omuse Omanyala
Applicant
Procedural Posture
Probate and Administration / Ruling on Application to Amend Objection
Legal Issues
- 1 Whether the applicant should be granted leave to amend his objection in the succession proceedings.
- 2 Whether the draft amended application should be deemed as duly filed upon payment of requisite fees.
Ratio Decidendi
The court found that the applicant, having initially acted in person and now represented by counsel, should be allowed to amend his objection to ensure that the real issues are brought before the court. The application was unopposed, and there was no prejudice shown to the respondent. The court exercised its discretion to allow the amendment in the interest of justice and proper adjudication of the succession dispute.
Court Disposition
application allowed
Orders
- The draft amended application is deemed as duly filed upon payment of the requisite fees.
- The respondent shall be served with the amended application and may file a response within 14 days of service.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO.212 OF 2010
IN THE MATTER OF THE ESTATE OF:MUKA ADUNGO ................................ DECEASED
BETWEEN
SIMON IGULUBERA IMUKA.....................PETITIONER/ RESPONDENT
AND
PHILIP OMUSE OMANYALA .......................... OBJECTOR/APPLICANT
RULING
1. By way of chamber summons dated 31st October 2017 under sections 47&74 of the Law of Succession Act and rule 43 Probate and Succession Rules, the applicant sought leave to amend his objection and the draft amended application be deemed as duly filed upon payment of the requisite fees.
2. The application is premised on grounds that when the applicant filed his objection he was acting in person and therefore did not bring out the real issues. He subsequently instructed a counsel.
3. On the 27th March 2019, the parties sought to have the application disposed of by way of written submissions.
4. Upon my perusal of the submissions, I note that the application is not opposed.
5. The application is therefore allowed in the following terms:
a) That the draft amended application be deemed as duly filed upon payment of the requisite fees.
b) That the respondent be served with the amended application and be at liberty to file a response within 14 days of service.
c) Costs be in the cause.
DELIVERED and SIGNED at BUSIA this 26th day of September, 2019
KIARIE WAWERU KIARIE
JUDGE