[2013] KEHC 3640 (KLR)
The court found that the affidavit filed in support of the application for revocation of grant was so fundamentally defective and muddled that it amounted to no affidavit at all. As a result, there was no material before the court upon which it could exercise its discretion to determine the application. The court...
Source-derived case information.
- Citation
- [2013] KEHC 3640 (KLR)
- Parties
- Applicant: Muchoki Gachuhi; Respondent: Stephen Njoroge Gachuhi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 906 of 1997
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- Application struck out with leave to file a fresh affidavit.
- Judges
- DN Musyoka
- Legal Topics
- Revocation of Grant, Affidavit Requirements, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muchoki Gachuhi
Applicant
Stephen Njoroge Gachuhi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the application for revocation of grant can be determined in the absence of a proper supporting affidavit.
- 2 Whether Article 159 of the Constitution cures substantive defects in affidavits supporting applications for revocation of grant.
Ratio Decidendi
The court found that the affidavit filed in support of the application for revocation of grant was so fundamentally defective and muddled that it amounted to no affidavit at all. As a result, there was no material before the court upon which it could exercise its discretion to determine the application. The court held that the defect was not a mere technicality that could be cured by Article 159 of the Constitution, as the affidavit is the primary evidence supporting such an application. The applicant's failure to withdraw the defective affidavit and file a proper one was fatal to the application at this stage.
Court Disposition
Application struck out with leave to file a fresh affidavit.
Orders
- The affidavit sworn on 24th April 1997 is struck out.
- The applicant is granted leave to file a fresh affidavit to support the revocation application dated 29th April 1997.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Succession Cause 906 of 1997 [if gte mso 9]><xml>
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IN THE MATTER OF THE ESTATE OF WANJA GACHUHI alias MARGARET WANJA GACHUHI (DECEASED)
RULING
The Summons dated 29th April 1997 is for revocation of the grant made on 12th May 1994 to Stephen Njoroge Gachuhi and confirmed on 3rd November 1995. On the face of the application, it is purported that the application is be supported by the affidavit of Muchoki Gachuhi. The affidavit filed contemporaneously with the application on 30th April 1997 purports to be that of Stephen Njoroge Gachuhi who is the respondent but it is signed Muchoki. There is a reply by Stephen Njoroge Gachuhi.
An application of this nature is granted at the discretion of the court. To exercise that discretion some material must be placed before the court by way of an affidavit. The affidavit before me, sworn on 24th April 1997, is so mixed up that it amounts to no affidavit at all. There is therefore no material upon which I can exercise my discretion to determine the application dated 29th August 1997. I am surprised that the applicant has not seen this mix -up todate.
It may be argued that Article 159 of the Constitution provides a cure to such a error. This is not a mere technicality of procedure. The affidavit carries the evidence which supports the applicantion. If the affidavit is muddled up, then the whole process is wrong. The applicant should have applied to withdraw the affidavit and to thereafter swear and file another. He did not avail himself of the remedy, instead he insisted on arguing the application with that anomaly.
I find no basis upon which I can determine the application before me. I will strike out the affidavit sworn on 24th April 1997, and grant leave to the applicant to file a fresh affidavit to support the revocation application dated 29th April 1997.
DATED, SIGNED and DELIVERED at NAIROBI this 10th DAY OF May, 2013.
W.M. Musyoka
Judge
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