[2016] KEHC 2871 (KLR)
The court found that the absence of a respondent rendered the application incurably incompetent. The judge noted that, while the joint affidavit was unusual, it was not the basis for dismissal. The fundamental defect was the lack of a respondent, which deprived the court of a proper adversarial process and the...
Source-derived case information.
- Citation
- [2016] KEHC 2871 (KLR)
- Parties
- Applicant: Rose Angelicah Nkonge; Applicant: James Kinoti Muthaura
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 57 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Competence
- Outcome
- application dismissed for incompetence
- Legal Topics
- Exhumation Application, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Angelicah Nkonge
Applicant
James Kinoti Muthaura
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Competence
Legal Issues
- 1 Whether an application for exhumation without a respondent is competent before the court.
- 2 Whether the joint affidavit by the applicants affects the validity of the application.
Ratio Decidendi
The court found that the absence of a respondent rendered the application incurably incompetent. The judge noted that, while the joint affidavit was unusual, it was not the basis for dismissal. The fundamental defect was the lack of a respondent, which deprived the court of a proper adversarial process and the opportunity for any affected party to be heard. Consequently, the application and the entire suit were summarily dismissed for want of procedural competence.
Court Disposition
application dismissed for incompetence
Orders
- The application and the whole suit are dismissed forthwith.
- No costs are awarded.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC CIVIL APPLICATION NO. 57 OF 2016
IN THE MATTER OF EXHUMATIO OF THE BODY OF GLORY KENDI (DECEASED)
ROSE ANGELICAH NKONGE.......................................................................1ST APPLICANT
JAMES KINOTI MUTHAURA........................................................................2ND APPLICANT
R U L I N G
1. This application is dated 12th July, 2016 and seeks orders that:-
1. THAT this application be certified as urgent.
2. THAT the body of one Glory Kendi, who died on 28th July, 2014 and was buried at Meru on Land Parcel No. Ntima/Igoki/9340 a subdivision of Land Parcel No. Ntima/Igoki/7024 belonging to the 2nd Applicant be exhumed and reinterred/ reburied on Land Parcel No. Ruiri/Rwarera/3342 belonging to the 1st Applicant.
3. THAT cost of this application be provided for.
2. The application is supported by the Affidavit of ANGELINA NKONGE and JAMES KINOTI MUTHAURA sworn on 12th July, 2016.
3. When the matter came up for directions on 20/09/2016, the Court discovered that the application is one of its kind as it does not have a Respondent.
4. I must own up that the Supporting Affidavit is also one of its own kind as it is jointly signed by the Applicants. I am not opining that there is anything wrong with it.
5. For the lack of a Respondent, I find that this application is incurably incompetent and merits summary dismissal.
6. This application and the whole suit is dismissed forthwith.
7. No costs are awarded.
DELIVERED IN OPEN COURT AT MERU THIS 21ST DAY OF SEPTEMBER, 2016 IN THE PRESENCE OF:-
CA: Daniel/James
B. Kimathi h/b Nyenyire for the Applicants
P.M.NJOROGE
JUDGE