[2010] KEHC 3821 (KLR)
The court found that the applicants failed to provide a convincing explanation for their collective absence from court, as there was no evidence that all seven plaintiffs traveled together or were affected by the same transport issues. The affidavit in support was sworn by only one plaintiff, and no corroborative...
Source-derived case information.
- Citation
- [2010] KEHC 3821 (KLR)
- Parties
- Applicant: Tom Nalianya Muniafu; Applicant: George Khaoya Muniafu; Applicant: David Mwalakha Muniafu; Applicant: Rodgers Mutongwa Muniafu; Applicant: Mike Natembeya Muniafu; Applicant: Erick Kituyi Muniafu; Applicant: Matasi Muniafu; Applicant: Simiyu Muniafu; Respondent: Christopher Mwenya Muniafu; Respondent: Siuma Traders
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 64 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed with costs
- Judges
- FN Muchemi
- Legal Topics
- Setting Aside Dismissal, Succession Proceedings, Beneficiary Inclusion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Nalianya Muniafu
Applicant
George Khaoya Muniafu
Applicant
David Mwalakha Muniafu
Applicant
Rodgers Mutongwa Muniafu
Applicant
Mike Natembeya Muniafu
Applicant
Erick Kituyi Muniafu
Applicant
Matasi Muniafu
Applicant
Simiyu Muniafu
Applicant
Christopher Mwenya Muniafu
Respondent
Siuma Traders
Respondent
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the applicants have provided sufficient cause to set aside the dismissal order of 7/03/2005.
- 2 Whether the applicants' absence from court was justified by transport problems or counsel's engagement elsewhere.
- 3 Whether the issues raised in the suit are more appropriately addressed in the succession cause.
Ratio Decidendi
The court found that the applicants failed to provide a convincing explanation for their collective absence from court, as there was no evidence that all seven plaintiffs traveled together or were affected by the same transport issues. The affidavit in support was sworn by only one plaintiff, and no corroborative evidence was provided. Additionally, the applicants' counsel's alleged engagement in another court was unsupported by any documentation. The court further held that the substantive issues raised by the applicants pertain to the succession cause, where they are entitled to seek remedies subject to proof. The application to set aside the dismissal order lacked merit and was...
Court Disposition
application dismissed with costs
Orders
- The application dated 8th March 2005 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL SUIT 64 OF 2001
1. TOM NALIANYA MUNIAFU
2. GEORGE KHAOYA MUNIAFU
3. DAVID MWALAKHA MUNIAFU.....................................................APPLICANTS
4. RODGERS MUTONGWA MUNIAFU
5. MIKE NATEMBEYA MUNIAFU
6. ERICK KITUYI MUNIAFU
7. MATASI MUNIAFU
8. SIMIYU MUNIAFU
~VRS~
CHRISTOPHER MWENYA MUNIAFU...............................................RESPONDENT
AND
SIUMA TRADERS................................................................................AUCTIONEERS
RULING
This is a ruling on the Plaintiffs’ application dated 8th March 2005 seeking to set aside orders of dismissal of suit made on 7/03/2005. It is grounded on the affidavit of the first Plaintiff/Applicant, Tom Nalianya Muniafu.
The grounds are that the Applicants had transport problems on the material day and arrived in court late. Further that the suit is based on a succession cause and of utmost importance to the Applicants. It would be in the interests of justice to have the suit determined interparties by the court.
The application was opposed on grounds that the Plaintiffs have lost interest in the suit. They are seven in number and none of them attended court on the material day. Their counsel said he was engaged in Kikuyu Court of Appeal on the material day but no evidence to that effect was produced. It is the Respondent’s conviction that the matter herein should be sorted out in succession cause no.38 of 1983.
I have looked at the plaint whose prayers seek to compel the administrator of the deceased’s estate in succession cause no.38 of 1993 to include the Plaintiffs herein as beneficiaries in the cause. The Respondent is the elder brother of the Plaintiffs. He is the administrator in the succession cause and had the grant confirmed in his favour. The orders sought herein are pertinent matters in the succession cause no.38 of 1983. The Plaintiffs are entitled to a remedy subject to proof in the said succession cause. The prayers sought in the originating summons herein manifest into a multiplicity of suits.
The Plaintiffs are seven in number. They have not convinced the court that on the day the case was dismissed that they were all traveling in one vehicle which in order to be wholesomely affected by the said transport problems. Neither have they shown the court that they live in one area and had to travel together. The reason that they had transport problems is not convincing. The affidavit in support is sworn by only one Plaintiff and I am not convinced that the same problem if any applied to all the Plaintiffs.
As argued by the Respondent, the failure by the Plaintiffs’ counsel to attend court has not been justified in that no cause list or hearing notice has been annexed for the Kikuyu Court of Appeal case.
I do not find any merit in the application and I dismiss it with costs.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed at Bungoma this 9th day of February, 2010.
In the absence of the parties in open court.