[2016] KEHC 5827 (KLR)
The court found that the application dated 23/3/2015 was scheduled for directions and not for hearing on 28/9/2015. The dismissal for non-attendance was therefore premature, as the respondent's replying affidavit had not been served and directions had not been issued. The court emphasized that procedural errors or...
Source-derived case information.
- Citation
- [2016] KEHC 5827 (KLR)
- Parties
- Applicant: Pelina Chepkoriot Kaptundus; Respondent: Malucho Kipkeu Simatwa
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 178 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Dismissal and Reinstate Summons for Revocation of Grant
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Revocation of Grant, Annulment of Grant, Reinstatement of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pelina Chepkoriot Kaptundus
Applicant
Malucho Kipkeu Simatwa
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Dismissal and Reinstate Summons for Revocation of Grant
Legal Issues
- 1 Whether the ex parte orders dismissing the applicant's application for non-attendance should be set aside.
- 2 Whether the application for revocation and/or annulment of grant should be reinstated for hearing on merits.
Ratio Decidendi
The court found that the application dated 23/3/2015 was scheduled for directions and not for hearing on 28/9/2015. The dismissal for non-attendance was therefore premature, as the respondent's replying affidavit had not been served and directions had not been issued. The court emphasized that procedural errors or blunders should not bar a party from having their case heard on the merits, unless there is evidence of fraud or intention to overreach. In line with the principles set out in Chemwolo v Kubede, the court concluded that the interests of justice required the setting aside of the ex parte dismissal and the reinstatement of the application for revocation and/or annulment of grant.
Court Disposition
application allowed
Orders
- The ex parte orders made on 28/9/2015 and all consequential orders are set aside.
- The application dated 23/3/2015 is reinstated for hearing on merits.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 178 OF 2013
IN THE MATTER OF ESTATE OF THE LATE KIPKEU SIMATWA (DECEASED)
AND
IN THE MATTER OF REVOCATION AND/OR ANNULMENT OF GRANT
BETWEEN
PELINA CHEPKORIOT KAPTUNDUS …........APPLICANT
AND
MALUCHO KIPKEU SIMATWA.....................RESPONDENT
R U L I N G
The application dated 2/10/2015 principally seeks orders that the exparte orders made on 28/9/2015 dismissing the applicant's application dated 23/3/2015 due to non attendance be set aside. The application further seeks orders that the application dated 23/3/2015 be reinstated.
According to the applicants in support, the application dated 23/3/2015 came up for directions on 28/9/2015 and not for hearing. That the case was called out and the application dismissed for non attendance on the applicant's part. It is contended that the court was mislead when the application was dismissed as the replying affidavit had not yet been served on the respondent for directions to be given by the court.
The application is opposed. The respondent filed the grounds of opposition dated 23/11/2015 stating that the application lacks merit and ought to be dismissed as the court properly exercised its discretion.
The application was argued by way of oral submissions which I have considered. The applicant's affidavit evidence is not controverted by any other evidence. It is apparent on the face of the record that the application dated 23/3/2015 was coming up for directions on 28/9/2015. The court was prematurely moved when the application was dismissed.
The application dated 23/3/2015 is a summons for revocation and/or annulment of grant. It is a matter that can best be settled by being heard on merits. As stated by the Court of Appeal of Chemwolo -vs- Kubede [1982-88] KAR 103,at 1040 stated as follows:-
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline”.
6. With the foregoing, I allow the application with costs in cause. The exparte orders made on 28/9/2015 and all the consequential orders thereof are hereby set aside.
_____________________
B. THURANIRA JADEN
JUDGE
Dated and delivered at Kitale this 10th day of March 2016.
_____________________
B. THURANIRA JADEN
JUDGE