[2020] KEHC 112 (KLR)
The court determined that the issues raised in the summons for revocation of grant, given their complexity and the involvement of multiple family members and related succession proceedings, could not be adequately resolved through affidavit evidence alone. The court found that oral evidence (viva voce) was necessary...
Source-derived case information.
- Citation
- [2020] KEHC 112 (KLR)
- Parties
- Applicant: Shadrack Wanjala Wekesa & 3 Others; Respondent: Annah Obwoyo Makokha; Respondent: Rose Munialo
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 145 of 2009
- Procedural Posture
- Succession Cause / Directions on Hearing of Summons for Revocation of Grant
- Outcome
- Application for revocation of grant to be heard by way of oral evidence; directions issued.
- Judges
- HK Chemitei
- Legal Topics
- Revocation of Grant, Succession Procedure, Oral Evidence, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shadrack Wanjala Wekesa & 3 Others
Applicant
Annah Obwoyo Makokha
Respondent
Rose Munialo
Respondent
Procedural Posture
Succession Cause / Directions on Hearing of Summons for Revocation of Grant
Legal Issues
- 1 Whether the summons for revocation of grant can be determined on affidavit evidence alone.
- 2 Whether oral (viva voce) evidence is necessary to resolve the issues in dispute regarding the estate.
Ratio Decidendi
The court determined that the issues raised in the summons for revocation of grant, given their complexity and the involvement of multiple family members and related succession proceedings, could not be adequately resolved through affidavit evidence alone. The court found that oral evidence (viva voce) was necessary to establish the essential historical facts and to ensure a fair and level playing field for all parties. Accordingly, the court directed that the application for revocation of grant be heard by way of oral evidence, allowing parties to file and exchange further affidavits and statements within 14 days.
Court Disposition
Application for revocation of grant to be heard by way of oral evidence; directions issued.
Orders
- The application dated 16th December 2019 shall be heard by way of oral evidence.
- Applicants to be treated as Plaintiffs and Respondents as Defendants for the hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
SUCCESSION CAUSE NO. 145 OF 2009
IN THE MATTER OF THE ESTATE OF THE LATE MARY NANGILA MULONGO - (DECEASED)
ANNAH OBWOYO MAKOKHA..................................................1ST RESPONDENT
ROSE MUNIALO...........................................................................2ND RESPONDENT
VERSES
SHADRACK WANJALA WEKESA& 3 OTHERS.......OBJECTORS/APPLICANTS
DIRECTIONS
1. This matter was scheduled for a ruling in respect to a summons for revocation of grant application dated 16th December 2019. The court has perused the same and its supporting affidavit sworn by the Applicant and the attendant annexures.
2. The court has perused also the replying affidavit of Anna Makokha, the 1st Respondent dated 10th March 2020. At the same time the court has perused the parties’ submissions on record.
3. This court is of the considered opinion that the objection proceedings cannot be effectively disposed by way of affidavit evidence. This is for the simple reason that the matter involved a larger part of the party’s families. More importantly there are other proceedings in respect to the estate of the late PENINA NAFULA CHANGA, namely Succession cause No.139 of 1999 which it appears gave rise to this cause. Evidence may be required to be adduced from the said cause affecting the parties herein.
4. The affidavits on record as they are, may not bring out the essential historical facts and thus there is need to have viva voce evidence adduced. This should give all the parties a good level playing field.
5. Consequently, the application dated 16th December 2019 be heard by way of oral evidence. The Applicants shall be the Plaintiffs and the Respondents the Defendants. Parties be at liberty to file and exchange further affidavits and statements, if any, within the next 14 days from the date herein.
6. Costs shall await the outcome of the cause.
Dated, Signed and delivered at Kitale this 21st day of October, 2020.
_________________
H. K. CHEMITEI
JUDGE
21/10/2020
In the presence of:-
Mr. Wanyonyi for the Objector
Mr. Wafula for the Petitioner
Court Assistant – Kirong
Directions given in open court.