In re Estate of Phoebe Omondi Migoye (Deceased) [2019] KEHC 5036 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO. 21 OF 2018

IN THE MATTER OF THE ESTATE OF PHOEBE OMONDI MIGOYE  (DECEASED)

DAVID BARRACK OTIENO MRUKA................PETITIONER/APPLICANT

VERSUS

ALIMA NYANGWESO AOGA......................1ST OBJECTOR/RESPONDENT

GEORGE ONYANGO AOGA.......................2ND OBJECTOR/RESPONDENT

RULING

The application dated 22nd October 2018 sought leave of the court, to enable the Petitioner lodge an appeal.

1. The Petitioner wishes to have an opportunity to appeal against the Judgment dated 29th June 2018.

2. It was the Applicant’s case that he was not aware of the date when the Judgment was scheduled to be delivered.

3. Indeed, it was only after the lapse of the period within which an appeal could have been lodged that the Applicant first became aware of the Judgment.

4. In answer to the application, Miss Akoth, the learned advocate for the

Respondent, submitted that the Applicant had no right to appeal against the Judgment because he was not a relative of the deceased, PHOEBE OMONDI MIGOYE.

5. Counsel noted that whilst the Applicant had claimed to be a son of the deceased, he later said that the deceased had adopted him.

6. During the hearing of the application, the court verified that on 29th June 2018, both parties were not in court when the judgment was being

delivered.

7. Secondly, the Respondent confirmed that he was unaware as to whether or not the Applicant was ever notified that the court would deliver its judgment on 29th June 2018.

8. I find that the Applicant had absolutely no information about the date when the court was scheduled to deliver the judgment.  Therefore, the Applicant cannot bear any responsibility for failing to attend court, when he had no reason to go to court on that date.

9. I also find that the Applicant first became aware about the judgment after the lapse of the period when he could have lodged an appeal.

10. The challenge put forward by the Respondent would appear to be more of an answer to the intended appeal than a reason to deny the Applicant an opportunity to purse his legal right.

11. Accordingly, I now grant leave to the Applicant to lodge his appeal against the judgment dated 29th June 2018.

12. He is allowed SEVEN DAYSfrom today to lodge his said appeal.

13. Finally, I order that the costs of the application shall be in the cause in the intended appeal.  If the appeal is successful, the Applicant will also be awarded the costs of the application.

14. On the other hand, if the appeal fails or does not take-off, the Applicant will pay the costs of the application to the Respondent.

DATED, SIGNED and DELIVERED at KISUMU

This 9th day of July 2019

FRED A. OCHIENG

JUDGE