The interested party Deccah Chepkemoi Chelule, herewith referred to as the applicant has come to court with an application dated 18th March 2024 seeking orders that the court re-opens her case and the allows the interested party to give testimony and support her case. The application is based on grounds that the interested party is the daughter in-law of the deceased, and in turn a beneficiary of the estate particularly located in Keringet/Kirobon, which is the subject of the suit which was devolved to her upon the death of her husband.
That it is in the interest of justice that the interested party be heard to facilitate the final and effectual determination of the issues arising in this matter. The interested party filed a document referred to as an affidavit signed by the lawyer but not deponed. The plaintiff respondent filed a replying affidavit stating that the application is not supported by an affidavit.
I have considered this application and do find that the same is a non-starter as there is no affidavit supporting the same. What is being referred to as the interested party affidavit is not an affidavit as provided by the statutory oath and declaration Act Cap 15 Laws of Kenya. The statement is not signed by the applicant and is not commissioned by a Commissioner for Oaths.
Moreover, the interested party has not given a satisfactory explanation as why she did not attend court to give evidence. It is not enough to blame counsel on record then, the applicant should demonstrate that she made an effort to attend court but was unable due to good reasons. The applicants counsel did not apply for adjournment to enable the applicant attend another day. I do find no basis for this application and the same is dismissed with costs.
The second application was filed by the 21st defendant and is dated 7th June 2024. I have carefully considered the application and the responses and do find that there are no good reasons for the court to exercise its discretion to reopen the case. The 21st respondent was given an opportunity by the court to testify but chose not to do the same. There is no good reason given as to why the applicant did not testify on 31st October 2023 or on 14th February 2024. It is not enough to blame his former advocate. Moreover, the former advocate has not sworn any affidavit to indicate that he tried to avail the 21st defendant to give evidence. The application has no basis and is dismissed with costs.
That it is in the interest of justice that the interested party be heard to facilitate the final and effectual determination of the issues arising in this matter. The interested party filed a document referred to as an affidavit signed by the lawyer but not deponed. The plaintiff respondent filed a replying affidavit stating that the application is not supported by an affidavit.
I have considered this application and do find that the same is a non-starter as there is no affidavit supporting the same. What is being referred to as the interested party affidavit is not an affidavit as provided by the statutory oath and declaration Act Cap 15 Laws of Kenya. The statement is not signed by the applicant and is not commissioned by a Commissioner for Oaths.
Moreover, the interested party has not given a satisfactory explanation as why she did not attend court to give evidence. It is not enough to blame counsel on record then, the applicant should demonstrate that she made an effort to attend court but was unable due to good reasons. The applicants counsel did not apply for adjournment to enable the applicant attend another day. I do find no basis for this application and the same is dismissed with costs.
The second application was filed by the 21st defendant and is dated 7th June 2024. I have carefully considered the application and the responses and do find that there are no good reasons for the court to exercise its discretion to reopen the case. The 21st respondent was given an opportunity by the court to testify but chose not to do the same. There is no good reason given as to why the applicant did not testify on 31st October 2023 or on 14th February 2024. It is not enough to blame his former advocate. Moreover, the former advocate has not sworn any affidavit to indicate that he tried to avail the 21st defendant to give evidence. The application has no basis and is dismissed with costs.