[2020] KEHC 1966 (KLR)
The court held that since there is already a judgment on record and the application before the court is for review of that judgment, the matter does not warrant the calling of witnesses. Affidavit evidence is sufficient for the determination of the issues raised, including the alleged sale of land. The application...
Source-derived case information.
- Citation
- [2020] KEHC 1966 (KLR)
- Parties
- Applicant: Joyce Wande; Applicant: Celifer Anami; Respondent: Rose Apwoka; Respondent: Berita Kakai; Interested Party: Rose Alili; Interested Party: Hellen Ayoko Benson Angolo; Interested Party: Boaz Amasa Alumbe; Interested Party: Omalila Alumbe
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 519 ‘A’ of 2000
- Procedural Posture
- Succession Cause / Ruling on Mode of Hearing for Review Application
- Outcome
- Application for viva voce evidence declined; review application to proceed by way of arguments on affidavits.
- Judges
- CM Njagi
- Legal Topics
- Review of Judgment, Succession Disputes, Mode of Hearing, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Wande
Applicant
Celifer Anami
Applicant
Rose Apwoka
Respondent
Berita Kakai
Respondent
Rose Alili
Interested Party
Hellen Ayoko Benson Angolo
Interested Party
Boaz Amasa Alumbe
Interested Party
Omalila Alumbe
Interested Party
Procedural Posture
Succession Cause / Ruling on Mode of Hearing for Review Application
Legal Issues
- 1 Whether the application for review of judgment in a succession cause should be heard by way of viva voce evidence or by arguments based on affidavits.
- 2 Whether the allegations of sale of land by the respondents require oral evidence.
Ratio Decidendi
The court held that since there is already a judgment on record and the application before the court is for review of that judgment, the matter does not warrant the calling of witnesses. Affidavit evidence is sufficient for the determination of the issues raised, including the alleged sale of land. The application for review should therefore proceed by way of arguments by advocates based on the affidavits filed, and not by viva voce evidence.
Court Disposition
Application for viva voce evidence declined; review application to proceed by way of arguments on affidavits.
Orders
- The application for the review to be heard by way of viva voce evidence is declined.
- The application for review shall proceed by way of arguments by the advocates for the parties based on affidavit evidence.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 519 ‘A’ OF 2000
IN THE MATTER OF THE ESTATE OF REUBEN ALUMBE NASIBI (DECEASED)
BETWEEN
ROSE APWOKA...............................................1ST APPLICANT/RESPONDENT
BERITA KAKAI.............................................. 2ND APPLICANT/RESPONDENT
VERSUS
JOYCE WANDE...................................................1ST PROTESTOR/APPLICANT
CELIFER ANAMI..............................................2ND PROTESTOR/APPLICANT
AND
ROSE ALILI.................................................................1ST INTERESTED PARTY
HELLEN AYOKO BENSON ANGOLO....................2ND INTERESTED PARTY
BOAZ AMASA ALUMBE............................................3RD INTERESTED PARTY
OMALILA ALUMBE...................................................4TH INTERESTED PARTY
RULING
1. The applicants, Joyce Wande and Celifer Anami, have filed an application dated 3rd May, 2018 seeking for review of this court’s judgment dated 28th June, 2017 and the review order of 18th April, 2018 on the grounds that the parcels of land that the court ordered that they be allocated to them in the said judgment and the review order had already been sold by the respondents, Rose Apwoka and Rose Alili. The allegations of sale were denied by the two respondents.
2. The matter came up for directions on 21/9/2020 when Mr. Arwanda holding brief for Mr. Kenei for the applicants sought that the application for review be heard by way of viva voce evidence. The advocate for the respondents, Mr. Odeny, on the other hand urged that since this is an application for review of a judgment, it should be heard by way of urguements by the advocates for the parties. The court reserved its ruling to determine the issue.
3. The application for review dated 3rd May, 2018 is supported by affidavits of the applicants. It was opposed by the affidavit of one of the respondents, Rose Apwoka. The issues before the court are clear. One party is alleging that the land allocated to them by the court in the review judgment dated 18th April, 2018 has already been sold by the other party. The other party denies that it has sold the land. Mr. Arwanda did not explain why Mr. Kenei wanted the application to be heard by way of oral evidence. Since there is a judgment in record the application for review of the judgment does not warrant for calling of witnesses. Affidavit evidence is sufficient.
4. In the premises, I decline the application by Mr. Kenei that the application proceeds by way of viva voce evidence. I do order for the same to proceed by way of urguements by the advocates for the parties.
Delivered, dated and signed at Kakamega this 22nd day of October, 2020.
J. NYAGA NJAGI
JUDGE
In the presence of:
Mr. Kenei for applicants
Mr. Odego for respondents
Parties: 1st and 2nd Respondents present
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