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Court of AppealDismissedCivil Appeal (Busia High Court Succession appeal, memorandum of appeal dated 24th March 2019)· [2024] KECA 1198 (KLR)

Elizabeth Igule Imaet v Stephen Okiti Okodoi

Court of Appeal of Kenya
20 September 2024
3,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a widow's attempt to overturn ex parte succession orders because she could not prove she was never served with court papers.

What this practically means

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Executive summary

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The appellant, Elizabeth Igule Imaet, appealed against a High Court ruling of 25th February 2019 (Kiarie J) refusing to set aside ex parte citation proceedings conducted before Kimaru J on 24th July 2012, in which she was ordered to petition for letters of administration intestate to the estate of the late David Otwane Imaet within 45 days. Her application under Order 10 Rule 11 of the Civil Procedure Rules and Rules 22(1) and 63 of the Probate and Administration Rules sought to set aside the ex parte proceedings and orders, and to revoke the grant and confirmation obtained by the respondent in Busia High Court Succession Cause No. 342 of 2012, together with cancellation of the resulting subdivision of parcel South Teso/Osurette/809. The Court of Appeal (Okwengu, Mativo and Ngugi JJA) identified the dispositive question as whether the appellant proved she was never served. Applying Ongom v Owota, it held that an ex parte order may be set aside on proof of non-service or sufficient cause for absence. Although the process server testified at the appeal that he never signed the disputed afidavit of service of 24th November 2011, the trial Judge had compared the disputed afidavit with an undisputed one sworn by the same process server and found the signatures identical after evaluating his testimony; the appellate court declined to disturb that finding. Relying on Shah v Mbogo, Mbogo v Shah and the Wambora decision, the Court held that no misdirection or manifest wrongness justified interference with the discretionary refusal. It further held, following Josiah Muli Wambua, that a citation file's purpose is exhausted once orders issue to the citor, and that the appellant's prayer for revocation of the grant and cancellation of the subdivision was sought in the wrong file, she already having filed an application in the succession cause. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Proof of service of court papers and the standard required to demonstrate lack of service

Holding

The appellant failed to demonstrate that she was not served. The trial Judge, having seen and heard the process server, compared the disputed afidavit of service with an undisputed afidavit sworn by the same process server and concluded the signatures were by the same person. The first appellate court found no basis to fault that finding.

Reasoning

Every trial is a search for truth. The trial Judge had the advantage of evaluating the process server's testimony and demeanour, which an appellate court lacks. Faced with two afidavits of service sworn by the same process server, one disputed and one undisputed, the Judge's comparison of signatures and conclusion that both were by the same person was a legitimate factual finding. Reversing such findings on appeal is undertaken only with care. The appellant therefore did not meet the first ground in Ongom v Owota for setting aside ex parte proceedings.

p. 6
02

The limits of appellate interference with a discretionary decision to refuse to set aside ex parte proceedings

Holding

The decision to set aside ex parte proceedings is discretionary and an appellate court will not interfere absent a demonstrated misdirection or manifest wrongness causing injustice. No such ground was established here.

Reasoning

Relying on Shah v Mbogo, Mbogo v Shah and the Supreme Court's decision in Parliamentary Service Commission v Martin Nyaga Wambora, the Court reiterated that discretion is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the course of justice. The appellant failed to demonstrate that the Judge misdirected himself, took into account irrelevant matters, or arrived at a plainly wrong decision.

p. 5
03

The purpose and proper scope of a citation to accept or refuse a grant in intestacy

Holding

A citation serves only to compel a person entitled to a grant to apply for it; once orders issue to the citor, the citation file's purpose is exhausted and any estate issues must be litigated in the succession cause.

Reasoning

Adopting the High Court's reasoning in Josiah Muli Wambua, the Court held that citations issue in intestacy only where no petition has been lodged, to trigger the process of applying for letters of administration where those entitled are unwilling or slow to move the court. Since Busia High Court Succession Cause No. 342 of 2012 had been filed, and the appellant was aware of it and had filed an application in it, her attempt to litigate revocation of the grant in the citation file was misguided and mischievous.

p. 2

Legal principles established

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  • An ex parte order may be set aside where the applicant was not served with summons, or where the applicant failed to appear at the hearing due to sufficient cause; proof of either suffices.
  • No court may properly proceed to hear a suit ex parte until it is satisfied that summons has been duly served in the manner the law provides.
  • An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself and arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong and injustice resulted.
  • Where a factual dispute presents two irreconcilable versions, the trial court determines the matter on the credibility and reliability of the witnesses and the probabilities.
  • A citation to accept or refuse a grant issues only where no petition has been lodged, to trigger the process of applying for letters of administration; once the judge issues orders to the citor, the citation file's purpose is fulfilled and estate issues must be addressed in the succession cause.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
High Court of Kenya (Busia)
Succession Cause (citation proceedings) - ruling dated 25th February 2019
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the High Court decision in succession (probate and administration) proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elizabeth Igule Imaet v Stephen Okiti Okodoi", Case Analysis (2024). Civil Appeal (Busia High Court Succession appeal, memorandum of appeal dated 24th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1198/eng@2024-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.