[2015] KEHC 6104 (KLR)
The court found that the respondent and his advocate were not present at the hearing on 21/1/2015 because they had not been served with a hearing notice. The record confirmed that the hearing date was not taken in the presence of the respondent's counsel, and there was no evidence of service. In the interests of...
Source-derived case information.
- Citation
- [2015] KEHC 6104 (KLR)
- Parties
- Applicant: James Ooko Odok; Respondent: George Owino Odhiambo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 542 of 2011
- Procedural Posture
- Succession Cause / Application to Set Aside Ex Parte Proceedings and for Fresh Hearing
- Outcome
- Ex parte proceedings set aside; matter to be heard afresh.
- Judges
- EM Muchoki
- Legal Topics
- Revocation of Grant, Probate and Administration, Non Disclosure of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ooko Odok
Applicant
George Owino Odhiambo
Respondent
Procedural Posture
Succession Cause / Application to Set Aside Ex Parte Proceedings and for Fresh Hearing
Legal Issues
- 1 Whether the ex parte proceedings conducted on 21/1/2015 should be set aside for failure to serve the respondent with a hearing notice.
- 2 Whether the matter should be heard afresh to ensure fairness and compliance with the rules of natural justice.
Ratio Decidendi
The court found that the respondent and his advocate were not present at the hearing on 21/1/2015 because they had not been served with a hearing notice. The record confirmed that the hearing date was not taken in the presence of the respondent's counsel, and there was no evidence of service. In the interests of justice and to avoid condemning a party unheard, the court exercised its discretion under Rule 73 of the Probate and Administration Rules to set aside the ex parte proceedings and directed that the matter be heard afresh. The court emphasized that the right to be heard is a fundamental principle and that failure to serve a hearing notice is a sufficient ground to set aside...
Court Disposition
Ex parte proceedings set aside; matter to be heard afresh.
Orders
- The proceedings taken on 21/1/2015 are set aside.
- The matter shall be heard afresh.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
HC SUCC CAUSE NO. 542 OF 2011
JAMES OOKO ODOK..........................APPELLANT/APPLICANT
VERSUS
GEORGE OWINO ODHIAMBO …............................RESPONDENT
JUDGMENT
By the summons dated 3rd October, 2011 James Ooko Odok described as the interested party/Applicant sought the revocation of the letter of Administration issued to George Owino Odhiambo- the Respondent- by the Siaya court in the estate of Walome Ooko(deceased)
The grounds for the summons were that the proceedings to obtain the letters of administration were defective in substance and that the grant was obtained fraudulently by making a false statement or by the concealment from court of something material to the case.
In the supporting affidavit it is deposed that the Respondent s a son of the brother of the deceased and that the applicant is the grandson of the deceased being a son to Antony Odok Walome. The applicant also deposes that his father died when he was 4 years old and that he was left under the care of his grandmother one Margaret Olendo who died in July, 1993; That the Respondent did not disclose all this to the court when he obtained the letter of administration. He deposes further that the respondent is in the process of disposing the land and that all the efforts to resolve the dispute through their area chief have failed as the respondent does not heed to his summons.
The respondent filed a replying affidavit in which he disputes that he acted fraudulently in the succession proceedings and deposes that the land the subject of the proceedings was gifted to him by Margaret Olando Walome after the death of her husband Walome who was his uncle ( a brother to his father). He also deposes that whereas Margaret Olendo Walome and Walome had a son called Anton Odok the said son died childless and that his wife Alice divorced him in 1985 and never returned. He further deposes that the applicant is a stranger who is not related to Margaret Olendo Walome in any way and only appeared in the village in 2009 and started laying claim to the land LR Uholo/Ugenya/274. He urges this court to dismiss the summons stating that Margaret Olendo Walome and even Anton Odok never in their life time mentioned the existence of the applicant.
The respondent`s advocate further filed grounds of opposition on 19/1/2014.
On 23/1/2014 Muchelule-J gave directions that the summons be canvassed through oral evidence. The applicant was deemed to be the plaintiff and the Respondent/defendant. Parties were given leave to file further affidavits.
The matter was fixed for hearing severally but it could not proceed for one reason of the other but on 21st January, 2015 the applicant turned plaintiff was ready to proceed. The respondent/defendant and his advocate were not present and the date being under the impression that the date had been fixed in the presence of counsel for the Respondent/defendant proceeded to hear the matter exparte. I have now confirmed from the record that Mr. Nyawiri the advocate for the Respondent/defendant was no present when the hearing date was taken. He was also not served with a hearing notice and it would be unjust to condemn his client unheard. It is for this reason that I hereby provoke the powers vested in me under rule 73 of the probate and Administration Rules to set aside the proceedings taken on 21/1/2015 and order that the matter be heard afresh. A fresh date for the hearing be taken either in court or in the registry. There shall be no order for costs.
E.N. MAINA
JUDGE
Signed, dated and delivered in Kisumu this 19th day of March, 2015
In the presence of_
Mr. Onyango for the Applicant
No appearance of for Respondent
Court clerk Moses Okumu
Mr. Onyango: We can take a date here.
Court: The summons for revocation be heard on 14/5/2015 to secure hearing Notice.
E.N. MAINA
JUDGE
19/3/2015
ENM/aar