[2021] KEHC 7759 (KLR)

[2021] KEHC 7759 (KLR)

The court found that although the applicant had filed his submissions and there was some inadvertence regarding their consideration, the substantive issues raised in those submissions were in fact addressed by the trial judge in the judgment. The applicant's interest in the estate was limited to 12 acres, and the...

Source-derived case information.

Citation
[2021] KEHC 7759 (KLR)
Parties
Appellant: Peter Mwanzia Musyoka; Respondent: Vivi Mutisya; Respondent: Muthile Mutisya; Respondent: Morris Mutisya; Respondent: Wambua Mutisya
Court
High Court
Court Station
High Court at Kitui
Jurisdiction
Kenya
Judgment Date
19 April 2021
Case Number
Civil Appeal 4 of 2016
Procedural Posture
Civil Appeal / Ruling on Application for Review of Judgment
Outcome
application dismissed
Judges
BB Limo
Legal Topics
Review of Judgment, Probate and Administration, Written Submissions, Procedural Fairness
Source Language
english
Civil Procedure Family and Children Review of Judgment Probate and Administration Written Submissions Procedural Fairness

Source-derived case record

Summary, issues, holding and outcome

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Parties

Peter Mwanzia Musyoka

Appellant

Vivi Mutisya

Respondent

Muthile Mutisya

Respondent

Morris Mutisya

Respondent

Wambua Mutisya

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Review of Judgment

Legal Issues

  1. 1 Whether the applicant was denied a fair hearing due to the court's failure to consider his written submissions.
  2. 2 Whether the judgment of 17th January, 2020 should be reviewed and set aside for error on the face of the record.
  3. 3 Whether the application for review is competent in a probate matter under the applicable rules.

Ratio Decidendi

The court found that although the applicant had filed his submissions and there was some inadvertence regarding their consideration, the substantive issues raised in those submissions were in fact addressed by the trial judge in the judgment. The applicant's interest in the estate was limited to 12 acres, and the judge had already directed that the issue of ownership be determined by the Environment and Land Court before the probate court could distribute the land. The court held that even if the review were granted and the appeal reheard, the outcome would not change, rendering the exercise futile. Furthermore, the court noted that the proper avenue for challenging the judgment was by...

Court Disposition

application dismissed

Orders

  • The application dated 4th February, 2020 is disallowed.
  • No order as to costs.