[2019] KEHC 6699 (KLR)
The court found that the application for revocation of grant was fatally incompetent because the authority relied upon by the applicant to represent the other co-applicants was not signed, thus lacking authentication or ownership. Additionally, the grant sought to be revoked was not annexed to the application, which...
Source-derived case information.
- Citation
- [2019] KEHC 6699 (KLR)
- Parties
- Applicant: Joseph Olawo Abalo; Applicant: John Onyango Abalo; Applicant: Samson Osweta Abalo; Applicant: Joseph Owuor Abalo
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1 of 2019
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application struck out as fatally incompetent
- Judges
- RE Aburili
- Legal Topics
- Revocation of Grant, Probate Procedure, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Olawo Abalo
Applicant
John Onyango Abalo
Applicant
Samson Osweta Abalo
Applicant
Joseph Owuor Abalo
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the summons for revocation of grant is competent in the absence of a signed authority from co-applicants.
- 2 Whether failure to annex the grant sought to be revoked renders the application fatally defective.
Ratio Decidendi
The court found that the application for revocation of grant was fatally incompetent because the authority relied upon by the applicant to represent the other co-applicants was not signed, thus lacking authentication or ownership. Additionally, the grant sought to be revoked was not annexed to the application, which is a mandatory requirement. These procedural defects were not curable, and as such, the application could not be sustained. The court therefore struck out the application for revocation of grant for being fatally incompetent, with no orders as to costs.
Court Disposition
application struck out as fatally incompetent
Orders
- The summons for revocation of grant dated 15/1/2019 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
SUCCESSION CAUSE NO. 1 OF 2019
(CORAM: R. E. ABURILI - J.)
IN THE MATTER OF THE ESTATE OF THE LATE ONYANGO ONUNGO (DECEASED)
IN THE MATTER OF APPLICATION BY JOSEPH OLAWO ABALO, JOHN
ONYANGO ABALO, SAMSON OSWETA ABALO AND JOSEPH OWUOR ABALO
AND
IN THE MATTER OF LAND PARCEL NORTH SAKWA/NYAWITA/819
AND
IN THE MATTER OF APPLICATION FOR REVOCATION OF GRANT
RULING
1. The Application by way of summons for revocation of grant dated 15th January 2019 is also supported by the affidavit of Joseph Olawo Abalo on the purported authority of Samson Asweta Abalo, John Onyango Abalo and Joseph Owuor Abalo filed on the 30/1/2019. However, the said authority is not signed. It is also not dated. Whereas the undating of the document is curable by the subsequent filing thereof, the failure to sign a document is fatal as there is no authentication or ownership of the document.
2. In addition, the grant which is sought to be revoked is not annexed to the summons for revocation of grant.
3. Accordingly, I find the Application/summons for revocation of grant dated 15/1/2019 fatally incompetent. The same is hereby struck out with no orders as to costs.
4. The Applicant is nonetheless advised to file a proper application before the relevant court as the Magistrate’s Court that is alleged to have issued the impugned grant has jurisdiction to entertain an application for revocation of grant.
Orders accordingly.
Dated, Signed and Delivered in open court at Siaya this 13th Day of February 2019.
R.E. ABURILI
JUDGE