[2014] KEHC 2657 (KLR)
The court found that there was no evidence that Jane Nyambura Ndungu was served with the application dated 29th October 2012. The affidavits of service and hearing notices only demonstrated service on the advocates for other parties, not on the applicant herself. As a result, the orders made on 16th May 2013, which...
Source-derived case information.
- Citation
- [2014] KEHC 2657 (KLR)
- Parties
- Applicant: Jane Nyambura Ndungu; Respondent: Kirundi & Company Advocates; Respondent: Maira & Ndegwa Advocates; Respondent: Mwangi & Guandaru Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1638 of 1993
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Prior Ruling
- Outcome
- Application allowed in part; orders of 16th May 2013 set aside; no order as to costs.
- Legal Topics
- Probate and Administration, Service of Process, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Nyambura Ndungu
Applicant
Kirundi & Company Advocates
Respondent
Maira & Ndegwa Advocates
Respondent
Mwangi & Guandaru Advocates
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Prior Ruling
Legal Issues
- 1 Whether the applicant was properly served with the summons dated 29th October 2012.
- 2 Whether the ruling delivered on 16th May 2013 should be set aside for lack of service.
- 3 Whether a consent order on distribution can be entered without concurrence of all parties.
Ratio Decidendi
The court found that there was no evidence that Jane Nyambura Ndungu was served with the application dated 29th October 2012. The affidavits of service and hearing notices only demonstrated service on the advocates for other parties, not on the applicant herself. As a result, the orders made on 16th May 2013, which adversely affected the applicant, were made without her being heard. This violated the principles of natural justice and fair hearing. Consequently, the court set aside the orders of 16th May 2013. The court declined to enter a consent order on distribution, noting that such an order requires the concurrence of all parties to the compromise, which was not demonstrated in this...
Court Disposition
Application allowed in part; orders of 16th May 2013 set aside; no order as to costs.
Orders
- The application dated 23rd October 2013 is allowed in terms of prayer 1.
- The orders made on 16th May 2013 are set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1638 OF 1993
IN THE MATTER OF THE ESTATE OF SIMON NDUNGU KIHONGE (DECEASED)
RULING
1. The application dated 23rd October 2013 is up for determination. It seeks the setting aside of the ruling delivered on 16th May 2013. It is also contended that the beneficiaries had previously reached a compromise on distribution.
2. The applicant states that she was not served with the summons dated 29th October 2012 which was the basis of the ruling delivered on 16th May 2013.
3. There is an affidavit of service sworn on 14th March 2014 showing that the application dated 23rd October 2013 was served on the Kirundi & Company Advocates, Maira & Ndegwa, Advocates and Mwangi & Guandaru Advocates. None of them filed replies to the said application.
4. I have perused the court record. The application dated 29th October 2012 was drawn to be served upon Maira & Ndegwa, Advocates, Kirundi & Company Advocates and Jane Nyambura Ndungu.
5. The affidavit of service on record sworn on 10th January 2013 shows that the application was served on Kirundi & Company, Advocates and Maira & Ndegwa, Advocates. The hearing notice dated 17th December 2012 returned with the affidavit of service of 10th January 2013 reveals that it was for service on Maira & Ndegwa Advocates, Kirundi & Company Advocates and Jane Nyambura Ndungu. There are stamps embossed on the hearing notice showing that the same was served on Maira & Ndegwa Advocates and Kirundi & Company Advocates.
6. There is no evidence that the said application was ever served on Jane Nyambura Ndungu. I am therefore satisfied that the orders made on 16th May 2013 ought to be set aside.
7. I do hereby allow the application dated 23rd October 2013 in terms of prayer 1. I will not allow prayer 2 of the application for a consent order must be recorded with the concurrence of all the parties to the compromise. There shall be no order as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 3rd DAY OF October 2014.
W. MUSYOKA
JUDGE