Rose Apwoka & 1 other v Joyce Wande & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA SUCCESSION CAUSE NO. 519 ‘A’ OF 2000 IN THE MATTER OF THE ESTATE OF REUBEN ALUMBE NASIBI (DECEASED) BETWEEN ROSE APWOKA...............................................1ST APPLICANT/RESPONDENT BERITA KAKAI.............................................. 2ND APPLICANT/RESPONDENT VERSUS JOYCE WANDE...................................................1ST PROTESTOR/APPLICANT CELIFER ANAMI..............................................2ND PROTESTOR/APPLICANT AND ROSE ALILI.................................................................1 ST INTERESTED PARTY HELLEN AYOKO BENSON ANGOLO....................2ND INTERESTED PARTY BOAZ AMASA ALUMBE............................................3 RD INTERESTED PARTY OMALILA ALUMBE...................................................4 TH INTERESTED PARTY RULING 1. The applicants, Joyce Wande and Celifer Anami, have filed an application dated 3 rd May, 2018 seeking for review of this court’s judgment dated 28th June, 2017 and the review order of 18th April, 2018 on the grounds that the parcels of land that the court ordered that they be allocated to them in the said judgment and the review order had already been sold by the respondents, Rose Apwoka and Rose Alili. The allegations of sale were denied by the two respondents. 2. The matter came up for directions on 21/9/2020 when Mr. Arwanda holding brief for Mr. Kenei for the applicants sought that the application for review be heard by way of viva voce evidence. The advocate for the respondents, Mr. Odeny, on the other hand urged that since this is an application for review of a judgment, it should be heard by way of urguements by the advocates for the parties. The court reserved its ruling to determine the issue. 3. The application for review dated 3 rd May, 2018 is supported by affidavits of the applicants. It was opposed by the affidavit of one of the respondents, Rose Apwoka. The issues before the court are clear. One party is alleging that the land allocated to them by the court in the review judgment dated 18th April, 2018 has already been sold by the other party. The other party denies that it has sold the land. Mr. Arwanda did not explain why Mr. Kenei wanted the application to be heard by way of oral evidence. Since there is a judgment in record the application for review of the judgment does not warrant for calling of witnesses. Affidavit evidence is sufficient. 4. In the premises, I decline the application by Mr. Kenei that the application proceeds by way of viva voce evidence. I do order for the same to proceed by way of urguements by the advocates for the parties. Delivered, dated and signed at Kakamega this 22nd day of October, 2020.

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