[2005] KEHC 839 (KLR)
The court held that although the application for revocation of grant was brought by chamber summons instead of the prescribed summons for revocation, this procedural irregularity was not fatal. The court agreed that want of form alone should not be a ground for striking out an application, especially where the...
Source-derived case information.
- Citation
- [2005] KEHC 839 (KLR)
- Parties
- Petitioner: John Fredrick Andati; Objector: David Oyalo Andati; Applicant: Patrick Mulama Andati
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 206 of 1989
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Probate and Administration Rules, Form of Applications, Revocation of Grant, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Fredrick Andati
Petitioner
David Oyalo Andati
Objector
Patrick Mulama Andati
Applicant
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an application for revocation of grant made by chamber summons instead of summons for revocation is fatally defective.
- 2 Whether want of form in the application is a ground for striking out the application.
Ratio Decidendi
The court held that although the application for revocation of grant was brought by chamber summons instead of the prescribed summons for revocation, this procedural irregularity was not fatal. The court agreed that want of form alone should not be a ground for striking out an application, especially where the substance of the application is clear and justice can be served. The objection based solely on the form of the application was therefore dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The objection to the form of the application is dismissed.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA Succession Cause 206 of 1989 IN THE MATTER OF THE ESTATE OF GABRIEL ANDATI NANZUSHI (DECEASED)
JOHN FREDRICK ANDATI …………………………………….. PETITIONER A N D DAVID OYALO ANDATI …………………………………………. OBJECTOR PATRICK MULAMA ANDATI ………………………………….. APPLICANTR U L I N G
This is a ruling on the preliminary point of law raised by Mr. Khamati, learned counsel for the Petitioner, when the application dated 26. 1.2000 came up for hearing. His point was that the application was irregular. The application was by way of Chamber Summons premised on rules 59 and 73 of the Probate and Administration Rules under the Succession Act Cap. 160. It was Mr. Khamati’s submission that the application was irregular and should ipso facto be struck out. He referred to rule 44 of the Probate and Administration Rules and Form 107 which show that an application for revocation of Grant must be by way of summons for revocation of Grant and not by chamber summons. Mr. Khamati was quite correct in his submission but I do not subscribe to the view that the error was fatal.
Mr. Onyando, learned counsel for the Objector opined that want of form should not be a ground for striking out. I am in agreement. However, where the procedure for making an application or for filing any proceeding is prescribed it is not in all cases where it is not followed that the court would excuse the flaw and decline to strike out the pleading.
I dismiss the objection.
Dated at Kakamega this 14th day of July 2005
G. B. M. KARIUKI
J U D G E