[2012] KEHC 452 (KLR)

[2012] KEHC 452 (KLR)

The court found that although the objector's counsel was properly served and failed to attend the hearing, the matter involved sensitive family issues and disputed property that may or may not form part of the deceased's estate. In the interests of justice and fairness, the court exercised its discretion to set aside the ex parte orders to allow the objector an opportunity to present her claim. The court emphasized that denying the objector a hearing could result in an injustice if her claim to the property was valid. However, the applicant was ordered to pay the petitioner's costs of the application due to her role in causing the situation.

Citation
[2012] KEHC 452 (KLR)
Parties
Applicant: Petitioner (name not specified); Respondent: Objector (name not specified)
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
11 October 2012
Case Number
Succession Cause 1661 of 2011
Procedural Posture
Succession Cause / Application to Set Aside Ex Parte Orders
Outcome
Application to set aside ex parte orders allowed; ex parte orders set aside; costs awarded to petitioner.
Judges
CM Njagi
Legal Topics
Estate Administration, Ex Parte Orders, Setting Aside Orders, Succession Disputes
Source Language
English
Family and Children Civil Procedure Estate Administration Ex Parte Orders Setting Aside Orders Succession Disputes

Case Brief

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Parties

Petitioner (name not specified)

Applicant

Objector (name not specified)

Respondent

Procedural Posture

Succession Cause / Application to Set Aside Ex Parte Orders

Legal Issues

  1. 1 Whether the ex parte orders granted on 23rd February, 2012 should be set aside.
  2. 2 Whether the objector was properly served and had reasonable grounds for non-attendance.
  3. 3 Whether the interests of justice require the objector to be heard on her claim regarding the property in dispute.

Ratio Decidendi

The court found that although the objector's counsel was properly served and failed to attend the hearing, the matter involved sensitive family issues and disputed property that may or may not form part of the deceased's estate. In the interests of justice and fairness, the court exercised its discretion to set aside the ex parte orders to allow the objector an opportunity to present her claim. The court emphasized that denying the objector a hearing could result in an injustice if her claim to the property was valid. However, the applicant was ordered to pay the petitioner's costs of the application due to her role in causing the situation.

Court Disposition

Application to set aside ex parte orders allowed; ex parte orders set aside; costs awarded to petitioner.

Orders

  • The ex parte orders made on 23rd February, 2012 are set aside.
  • Parties to take a fresh hearing date at the registry for the hearing of the application by summons dated 10th November, 2011.