[2022] KEHC 27044 (KLR)
The court found that the consent order dated 1st October, 2019 was not valid as it was executed without the involvement of George Otieno Mireri, a necessary party, and without the participation of the advocate on record for the petitioners. The court emphasized that it is improper to deal directly with a party who...
Source-derived case information.
- Citation
- [2022] KEHC 27044 (KLR)
- Parties
- Applicant: James Allugha; Applicant: Shadrack Aluga; Respondent: Margaret Auma Muma
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 21 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Consent Order
- Outcome
- Application allowed; consent order set aside.
- Judges
- KW Kiarie
- Legal Topics
- Setting Aside Consent Orders, Representation of Parties, Succession and Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Allugha
Applicant
Shadrack Aluga
Applicant
Margaret Auma Muma
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order dated 1st October, 2019 should be set aside for lack of participation and approval by all necessary parties.
- 2 Whether actions flowing from a consent order not involving all parties are valid.
Ratio Decidendi
The court found that the consent order dated 1st October, 2019 was not valid as it was executed without the involvement of George Otieno Mireri, a necessary party, and without the participation of the advocate on record for the petitioners. The court emphasized that it is improper to deal directly with a party who is represented by an advocate, and that all parties must be involved in the execution of a consent order for it to be binding. Consequently, the consent order and any actions flowing from it were set aside, and the estate was restored to its previous position.
Court Disposition
Application allowed; consent order set aside.
Orders
- The consent of 1st October, 2019 is set aside.
- Any actions that may have flowed from the said consent are hereby nullified.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
PROBATE & ADMINSTRATION NO.21 OF 2019
IN THE MATTER OF THE ESTATE OF: IBRAHIM MIRERI OGEDA.........DECEASED
BETWEEN
JAMES ALLUGHA..................1ST APPLICANT
SHADRACK ALUGA .............2ND APPLICANT
AND
MARGARET AUMA MUMA .....RESPONDENT
RULING
1. The applicants herein, moved the court by Notice of Motion dated 3rd April, 2021. It was brought under sections 3 and 3A of the Civil Procedure Act. They are seeking the following orders:
a. That this application be certified as urgent. [Spent]
b. The Honourable court be pleased to set aside consent order dated 1st October, 2019.
c. That costs of this application be in the cause.
2. The application was premised on the following grounds:
a. That the said consent was not signed by George Otieno Mireri and or his advocate.
b. That the contents of the said consent did not receive the approval of the said George Otieno Mireri who was a party to the suit.
c. That the purported mode of distribution was done without the consent of the said George Otieno Mireri who represented other beneficiaries.
d. That the said consent has disinherited other beneficiaries.
3. The respondents opposed the application on ground that the consent entered is binding to all the parties.
4. There are two issues that are evident in this matter. At the time of filing the consent dated 15th July, 2019 other than Ibrahim Onyango Muma, George Otieno Mireri was also a party. He was not involved in the said consent. Equally, the firm of H.O Mimba & Company Advocates for the petitioners was not involved and yet it was on record for the applicant.
5. The practice is that when a party is represented by an advocate, one does not deal with a party so represented directly. Why the firm of Bana & Company Advocates chose to deal with one of the parties directly is not clear. The issue is compounded further by the fact that one of the parties to the succession cause was not involved. This therefore cannot be a consent of the parties in the matter.
6. From the foregoing, the consent of 1st October, 2019 is set aside and any actions that may have flowed from the said consent is hereby nullified. The estate reverts to the position it was in prior to the impugned consent.
7. Costs be borne by the respondent.
DELIVERED AND SIGNED AT HOMA BAY THIS 28TH DAY OF FEBRUARY, 2022
KIARIE WAWERU KIARIE
JUDGE