1. Before Court is the Notice of Motion dated 28/7/2026 by the 2nd and 3rd administrator/applicant. It was brought under sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, 2010, Articles 48 and 50(1) of the Constitution and Rule 73 of the Probate and Administration Rules.
2. They sought the review, variation and/or setting aside of the order made on 21/7/2026 that directed the administrators to pay the objectors Kshs.55,000/= within 60 days, being the costs occasioned by the adjournment of the cross-examination that had been scheduled to proceed on that day. That the costs arising from the adjournment of that day be in the cause.
3. The application was supported by the affidavit of Samson Auma Lago , the 2nd administrator, sworn on 28/7/2026. He deposed that the cross-examination of the administrators' advocate had been scheduled for 21/7/2026 at 12:15 p.m. That his advocate, Mr. Michael Otieno Okelloh, was present in Court on that day from about noon but that the proceedings in a preceding matter extended beyond the time allocated to this matter.
4. That at about 1:25 p.m, his said advocate left the Court so as not to miss a flight scheduled to depart from Kisumu at 2:10 p.m. That he had a pre-planned work assignment in Malindi and that he had an onward flight from Nairobi to Malindi at 4:30 p.m.
5. He produced copies of the relevant travel documents, communications and boarding passes. The material showed that the advocate had booked a flight from Kisumu to Nairobi on 21/7/2026 and an onward flight from Nairobi to Malindi.
6. The applicants contended that their advocate did not deliberately fail to attend the cross-examination and that his departure was occasioned by circumstances beyond his control. They therefore urged the Court to review its order of 21/7/2026.
7. The application was opposed vide a replying affidavit sworn by John Andrew Nono on 6/8/2026. He stated that the administrators' advocate was aware of the date fixed for cross-examination as early as 30/6/2026, when the parties appeared virtually before the Court. That that position was reaffirmed by the Court's subsequent order of 15/7/2026, which directed that the cross-examination take place in open Court on 21/7/2026.
8. That despite having such notice and the requirement for physical attendance, the applicants' advocate left Court without seeking an adjournment, without seeking leave to leave the Court and without addressing the Court on the difficulty allegedly presented by his flight. That the fact that the preceding matter took longer than anticipated was an ordinary feature of judicial proceedings and did not constitute an extraordinary circumstance that entitled counsel to unilaterally absent himself from a matter for which he had a scheduled hearing.
9. The applicants filed a Further Affidavit sworn by Samson Auma Lago on 14/8/2026 . They challenged the competence of the replying affidavit on the ground that Mr. John Andrew Nono was a stranger to the proceedings and had merely stated that he was one of the objectors' advocates.
10. The parties filed their respective submissions dated which are on record and have been considered. The submissions are dated 15/8/2026 and 26/8/2026, respectively. I have considered the rival contestations and the submissions on record.
11. Two issues arise for determination; whether the Replying Affidavit sworn by John Andrew Nono on 6/8/2026 is incompetent and ought to be struck out; and whether the applicants have made a case for review or setting aside of the order of 21/7/2026.
12. The applicants' objection to the replying affidavit was premised on the ground that the deponent was not a party to the proceedings. That he was a stranger to the suit. That since the deponent described himself as one of the objectors' advocates, yet he was not the advocate appearing on the face of the record, his affidavit was fatally defective.
13. An affidavit is evidence produced by a person who has knowledge of the matters deposed to. The critical question is not whether the deponent is a party to the proceedings, but whether the matters deposed to are matters which he is competent to state from his own knowledge and whether he is authorised by the party for whom he deposes the affidavit. There was no evidence on record to show that the deponent was not one of the advocates for the objectors.
14. Order 19 Rule 3(1) of the Civil Procedure Rules provides that affidavits shall be confined to facts which the deponent is able of his own knowledge to prove, subject to the exception applicable to interlocutory proceedings. The law does not prescribe that every affidavit filed in proceedings must necessarily be sworn by a party to the proceedings.
15. Equally, there is no absolute prohibition against an advocate swearing an affidavit. The restriction is against an advocate entering the arena of disputed facts and swearing to contentious evidentiary matters in circumstances where he may subsequently be required to appear as a witness.
16. In the present case, Mr. Nono deposed on what transpired in Court, including the date fixed for cross-examination, the subsequent directions of the Court and the conduct of counsel on 21/7/2026. Such matters were within the deponent's personal knowledge, if he was present, or can be discerned from the Court record.
17. I therefore find that the replying affidavit was not incompetent. The allegation that the said replying affidavit was sworn by a stranger and a busybody is unfounded and the objection is accordingly rejected.
18. The next issue is whether a case for review or variation of the order has been made. The applicants invoke section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
19. There is jurisdiction for the Family Court to review its orders under Rule 63 of the Probate and Administration Rules which imports the review provisions of the Civil Procedure Rules. The grounds for review are discovery of new and important matter or evidence which, despite due diligence, was not within the applicant's knowledge or could not be produced at the time the order was made; mistake or error apparent on the face of the record; and any other sufficient reason, provided the application is made without unreasonable delay.
20. In the present case, the order was made on 21/7/2026 and the present application was made on 28/7/2026 , a period of 7 days. I hold that the application was made timeously.
21. A reading of the application would show that the application was brought under ‘any sufficient cause’. In the present case, the matter had been fixed for cross-examination of the deponent of an affidavit of service that resulted in the confirmation of the grant herein. The applicants' advocate was aware of the hearing date.
22. On that date, the advocate appeared before Court and confirmed his availability for the cross-examination. The Court then allocated the matter a time of 12:15 p.m. The advocate was physically present in Court when the proceedings in the preceding matter continued beyond that time. He thereafter left Court at approximately 1:25 p.m. in order to catch his scheduled flight.
23. The applicants have annexed evidence demonstrating that the advocate indeed had a flight scheduled from Kisumu to Nairobi at 2:10 p.m., with a further flight from Nairobi to Malindi.
24. I appreciate that judicial proceedings do not always proceed according to the timelines allocated to them. Matters listed earlier may, for perfectly legitimate reasons, take longer than anticipated. Advocates practising before the Court are expected to accommodate the ordinary uncertainties inherent in the conduct of judicial proceedings and, where a difficulty arises, seek appropriate directions from the Court.
25. In the circumstances of this case, the advocate was appearing as a witness and not as advocate. He was supposed to be cross-examine. His scheduled flight was a personal logistical consideration known to him before the hearing. It was therefore incumbent upon him to make the necessary arrangements to ensure that his scheduled court attendance was not compromised or, if circumstances made that impossible, to seek the Court's directions before leaving.
26. I have considered that the administrators did offer their witness. That the witness was in Court until 1.25pm. That due to the heavy work load for the Court for that day, this matter was delayed beyond the time allocated. The mistake was that of the witness and not the administrators.
27. I would in the circumstances of this case, allow the application, review the order and direct that the costs of that adjournment do abide the outcome of the proceedings herein.
It is so ordered.
2. They sought the review, variation and/or setting aside of the order made on 21/7/2026 that directed the administrators to pay the objectors Kshs.55,000/= within 60 days, being the costs occasioned by the adjournment of the cross-examination that had been scheduled to proceed on that day. That the costs arising from the adjournment of that day be in the cause.
3. The application was supported by the affidavit of Samson Auma Lago , the 2nd administrator, sworn on 28/7/2026. He deposed that the cross-examination of the administrators' advocate had been scheduled for 21/7/2026 at 12:15 p.m. That his advocate, Mr. Michael Otieno Okelloh, was present in Court on that day from about noon but that the proceedings in a preceding matter extended beyond the time allocated to this matter.
4. That at about 1:25 p.m, his said advocate left the Court so as not to miss a flight scheduled to depart from Kisumu at 2:10 p.m. That he had a pre-planned work assignment in Malindi and that he had an onward flight from Nairobi to Malindi at 4:30 p.m.
5. He produced copies of the relevant travel documents, communications and boarding passes. The material showed that the advocate had booked a flight from Kisumu to Nairobi on 21/7/2026 and an onward flight from Nairobi to Malindi.
6. The applicants contended that their advocate did not deliberately fail to attend the cross-examination and that his departure was occasioned by circumstances beyond his control. They therefore urged the Court to review its order of 21/7/2026.
7. The application was opposed vide a replying affidavit sworn by John Andrew Nono on 6/8/2026. He stated that the administrators' advocate was aware of the date fixed for cross-examination as early as 30/6/2026, when the parties appeared virtually before the Court. That that position was reaffirmed by the Court's subsequent order of 15/7/2026, which directed that the cross-examination take place in open Court on 21/7/2026.
8. That despite having such notice and the requirement for physical attendance, the applicants' advocate left Court without seeking an adjournment, without seeking leave to leave the Court and without addressing the Court on the difficulty allegedly presented by his flight. That the fact that the preceding matter took longer than anticipated was an ordinary feature of judicial proceedings and did not constitute an extraordinary circumstance that entitled counsel to unilaterally absent himself from a matter for which he had a scheduled hearing.
9. The applicants filed a Further Affidavit sworn by Samson Auma Lago on 14/8/2026 . They challenged the competence of the replying affidavit on the ground that Mr. John Andrew Nono was a stranger to the proceedings and had merely stated that he was one of the objectors' advocates.
10. The parties filed their respective submissions dated which are on record and have been considered. The submissions are dated 15/8/2026 and 26/8/2026, respectively. I have considered the rival contestations and the submissions on record.
11. Two issues arise for determination; whether the Replying Affidavit sworn by John Andrew Nono on 6/8/2026 is incompetent and ought to be struck out; and whether the applicants have made a case for review or setting aside of the order of 21/7/2026.
12. The applicants' objection to the replying affidavit was premised on the ground that the deponent was not a party to the proceedings. That he was a stranger to the suit. That since the deponent described himself as one of the objectors' advocates, yet he was not the advocate appearing on the face of the record, his affidavit was fatally defective.
13. An affidavit is evidence produced by a person who has knowledge of the matters deposed to. The critical question is not whether the deponent is a party to the proceedings, but whether the matters deposed to are matters which he is competent to state from his own knowledge and whether he is authorised by the party for whom he deposes the affidavit. There was no evidence on record to show that the deponent was not one of the advocates for the objectors.
14. Order 19 Rule 3(1) of the Civil Procedure Rules provides that affidavits shall be confined to facts which the deponent is able of his own knowledge to prove, subject to the exception applicable to interlocutory proceedings. The law does not prescribe that every affidavit filed in proceedings must necessarily be sworn by a party to the proceedings.
15. Equally, there is no absolute prohibition against an advocate swearing an affidavit. The restriction is against an advocate entering the arena of disputed facts and swearing to contentious evidentiary matters in circumstances where he may subsequently be required to appear as a witness.
16. In the present case, Mr. Nono deposed on what transpired in Court, including the date fixed for cross-examination, the subsequent directions of the Court and the conduct of counsel on 21/7/2026. Such matters were within the deponent's personal knowledge, if he was present, or can be discerned from the Court record.
17. I therefore find that the replying affidavit was not incompetent. The allegation that the said replying affidavit was sworn by a stranger and a busybody is unfounded and the objection is accordingly rejected.
18. The next issue is whether a case for review or variation of the order has been made. The applicants invoke section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
19. There is jurisdiction for the Family Court to review its orders under Rule 63 of the Probate and Administration Rules which imports the review provisions of the Civil Procedure Rules. The grounds for review are discovery of new and important matter or evidence which, despite due diligence, was not within the applicant's knowledge or could not be produced at the time the order was made; mistake or error apparent on the face of the record; and any other sufficient reason, provided the application is made without unreasonable delay.
20. In the present case, the order was made on 21/7/2026 and the present application was made on 28/7/2026 , a period of 7 days. I hold that the application was made timeously.
21. A reading of the application would show that the application was brought under ‘any sufficient cause’. In the present case, the matter had been fixed for cross-examination of the deponent of an affidavit of service that resulted in the confirmation of the grant herein. The applicants' advocate was aware of the hearing date.
22. On that date, the advocate appeared before Court and confirmed his availability for the cross-examination. The Court then allocated the matter a time of 12:15 p.m. The advocate was physically present in Court when the proceedings in the preceding matter continued beyond that time. He thereafter left Court at approximately 1:25 p.m. in order to catch his scheduled flight.
23. The applicants have annexed evidence demonstrating that the advocate indeed had a flight scheduled from Kisumu to Nairobi at 2:10 p.m., with a further flight from Nairobi to Malindi.
24. I appreciate that judicial proceedings do not always proceed according to the timelines allocated to them. Matters listed earlier may, for perfectly legitimate reasons, take longer than anticipated. Advocates practising before the Court are expected to accommodate the ordinary uncertainties inherent in the conduct of judicial proceedings and, where a difficulty arises, seek appropriate directions from the Court.
25. In the circumstances of this case, the advocate was appearing as a witness and not as advocate. He was supposed to be cross-examine. His scheduled flight was a personal logistical consideration known to him before the hearing. It was therefore incumbent upon him to make the necessary arrangements to ensure that his scheduled court attendance was not compromised or, if circumstances made that impossible, to seek the Court's directions before leaving.
26. I have considered that the administrators did offer their witness. That the witness was in Court until 1.25pm. That due to the heavy work load for the Court for that day, this matter was delayed beyond the time allocated. The mistake was that of the witness and not the administrators.
27. I would in the circumstances of this case, allow the application, review the order and direct that the costs of that adjournment do abide the outcome of the proceedings herein.
It is so ordered.