[2015] KEHC 2221 (KLR)
The court held that while it is improper for an advocate to swear an affidavit in support of an application for revocation of grant under Section 76 of the Law of Succession Act, this impropriety does not render the application invalid or fatally defective. The defect can be remedied by requiring the applicants...
Source-derived case information.
- Citation
- [2015] KEHC 2221 (KLR)
- Parties
- Applicant: Mary Muria Njoroge; Applicant: Monica Wangui Kerina; Respondent: Not stated
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2547 of 2010
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
- Outcome
- Application for revocation of grant not dismissed; applicants given leave to file supplementary affidavits within thirty days.
- Judges
- DN Musyoka
- Legal Topics
- Affidavit Evidence, Revocation of Grant, Law of Succession, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Muria Njoroge
Applicant
Monica Wangui Kerina
Applicant
Not stated
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
Legal Issues
- 1 Whether an affidavit in support of a summons for revocation of grant can be validly sworn by an advocate instead of the applicant.
- 2 Whether such an affidavit renders the application fatally defective.
Ratio Decidendi
The court held that while it is improper for an advocate to swear an affidavit in support of an application for revocation of grant under Section 76 of the Law of Succession Act, this impropriety does not render the application invalid or fatally defective. The defect can be remedied by requiring the applicants themselves to file supplementary affidavits. The court therefore ordered that the applicants file their own affidavits within thirty days, failing which the application for revocation would stand dismissed.
Court Disposition
Application for revocation of grant not dismissed; applicants given leave to file supplementary affidavits within thirty days.
Orders
- The affidavit in support of the application dated 1st April 2014 shall be supplemented by affidavits of Mary Muria Njoroge and Monica Wangui Kerina, to be filed within thirty days of the date of this order.
- In default of filing the supplementary affidavits within thirty days, the application dated 1st April 2014 shall stand dismissed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 2547 OF 2010
IN THE MATTER OF THE ESTATE OF PETER NJOROGE KIMANI (DECEASED)
RULING
What is pending determination is the Summons for Revocation of grant dated 1st April 2014.
The response to it is a Preliminary Objection raised by the respondents. The objection is that the affidavit in support of the Summons is sworn by the advocate of the applicant instead of the applicants themselves, and therefore it is founded on hearsay.
I have noted that the application is founded on the affidavit of the applicant’s advocate. It is improper for an advocate to swear an affidavit supporting an application under Section 76 of the Law of Succession Act, Cap 160, Laws of Kenya, given that such applications are heard orally in most cases. He cannot therefore be called as a witness to depose to matters of fact that his clients are best suited to testify on.
However, the mere fact that the affidavit in support of the application for revocation was sworn by the advocate for the applicant does not render it invalid or fatally defective. Whatever problems there may be with the application can be cured.
The order I make in the circumstances is that the affidavit in support of the application dated 1st April 2014 shall be supplemented by the affidavits of Mary Muria Njoroge and Monica Wangui Kerina, to be filed within thirty (30) days of the date of this order, in default of which the application dated 1st April 2014 shall stand dismissed.
DATED, SIGNED and DELIVERED at NAIROBI this 25TH DAY OF SEPTEMBER, 2015.
W. MUSYOKA
JUDGE