[2019] KEHC 7632 (KLR)
The court determined that, since neither party sought to cross-examine the deponents of the affidavits and there was no objection to the affidavit evidence, there was no demonstrated need to summon witnesses for oral evidence at this stage. The application for review should therefore be canvassed by way of...
Source-derived case information.
- Citation
- [2019] KEHC 7632 (KLR)
- Parties
- Applicant: Daniel Muli Justus; Applicant: Agnes Mbulwa Justus; Respondent: Richard Mutua Nzove; Respondent: Anthony Wambua Nzove
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 624a of 2010
- Procedural Posture
- Succession Cause / Ruling on Directions Regarding Review Application
- Outcome
- Application to be canvassed by written or oral submissions; no order on oral evidence at this stage.
- Judges
- BC Koech
- Legal Topics
- Revocation of Grant, Review of Court Orders, Affidavit Evidence, Cross Examination, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Muli Justus
Applicant
Agnes Mbulwa Justus
Applicant
Richard Mutua Nzove
Respondent
Anthony Wambua Nzove
Respondent
Procedural Posture
Succession Cause / Ruling on Directions Regarding Review Application
Legal Issues
- 1 Whether the application for review of the court's previous ruling should be canvassed by oral evidence or by submissions.
- 2 Whether there is a demonstrated need to summon deponents for cross-examination at this stage.
Ratio Decidendi
The court determined that, since neither party sought to cross-examine the deponents of the affidavits and there was no objection to the affidavit evidence, there was no demonstrated need to summon witnesses for oral evidence at this stage. The application for review should therefore be canvassed by way of submissions, either written or oral, rather than by viva voce evidence. The court emphasized that the issue of taking oral evidence would only arise if, after submissions, the need for cross-examination was demonstrated. This approach ensures procedural efficiency and respects the evidentiary framework provided by the Civil Procedure Rules.
Court Disposition
Application to be canvassed by written or oral submissions; no order on oral evidence at this stage.
Orders
- The application dated 30th January, 2019 shall be canvassed either via written or oral submissions.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
SUCCESSION CAUSE NO. 624A OF 2010
IN THE MATTER OF ESTATE OF THE LATENZOVE WAMBUA(DECEASED)
DANIEL MULI JUSTUS......................................................1ST APPLICANT
AND
AGNES MBULWA JUSTUS.................................................2ND APPLICANT
VERSUS
RICHARD MUTUA NZOVE
ANTHONY WAMBUA NZOVE.....ADMINISTRATORS/ RESPONDENTS
RULING ON DIRECTIONS
1. The deceased herein NZOVE WAMBUA died on 9th February, 2006. Before his death the deceased was presumably the registered owner of land Title No. Mavoko Town Block 3/2997 that is currently registered in the names of Richard Mutua Nzove and Antony Wambua Nzove as from 18. 6.2014.
2. The application filed on 15. 2.2016 dated 23. 1.2016 sought revocation of the grant that was issued on 11. 4.2011 on the grounds of concealment of material information and misrepresentation of facts. The said application was dismissed and found to lack merit and this prompted the instant application that was brought under Sections 47 and 76(b) and (c) of the Law of Succession Act and Rules 68 and 73 of the Probate and Administration Rules seeking orders that:
a). Spent.
b). Spent
c). This Honourable Court’s Orders/Ruling dated 22. 5.2018 dismissing the 1st applicant’s application dated 18. 2.2016 be reviewed and set aside.
d). The confirmed grant issued to Richard Mutua Nzove and Anthony Wambua Nzove be revoked.
e). That the 1st and 2nd Applicants, whom the deceased had taken and recognized as his children and dependants during his lifetime be included in the list of beneficiaries of the deceased’s estate and be given their shares thereof.
f). The costs of the application be provided for.
3. The Respondent, via undated replying affidavit opposed the application.
4. Counsel for the Applicants sought that oral evidence be tendered, and that she be allowed to call witnesses. However the respondent suggested that the application ought to be canvassed vide submissions.
5. Having carefully considered the arguments of counsel for the Applicants and the Respondent, it is my view that the substantive issue for determination is what procedural direction may be given for canvassing the issues raised in the review application.
6. As the Court determines this issue, it will take into account that at this juncture, it is not called upon to determine the disputed issues with a finality especially since the application is based on affidavit evidence. An affidavit is a written statement of facts and is accepted as evidence and from the circumstances before the court, the application relates to the review of a ruling that the court had previously passed. Where such evidence has been tendered, the only instance that the witnesses may give oral evidence is where it is sought to cross-examine them as per the provisions of Order 19 rule 2 of the Civil Procedure Rules that states as follows
Power to order attendance of deponent for cross examination.
“2. (1) Upon any application, evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent.”
7. The arguments by counsel do not reflect an intent to cross-examine the deponents thereby implying that the applicants will have the opportunity to convince the court as to whether they meet the threshold for grant of the orders sought via submissions, whether oral or written and by admitting viva voce evidence would amount to putting the cart before the horse. The issue of whether viva voce evidence will be taken shall only take place after the determination of the review application.
8. In my view, there being no objection to the evidence via the affidavits that have been filed, and there being no demonstrated need to summon the deponents of the affidavits for cross-examination, at this stage it would be for the counsels to argue out their application either orally or by written submissions.
9. In the upshot the court makes the following orders:
That the Application dated 30th January, 2019 be canvassed either via written or oral submissions.
It is so ordered.
Dated, delivered and signed atMachakosthis 13thday of May, 2019.
D.K. KEMEI
JUDGE