Benard Doel Makabuni v Leonard Ndemo Ombachi t/a Ombachi & Co. Advocates [2021] KEELC 4767 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court can set aside a High Court order not presented before it
It cannot; the order sought to be set aside was not on the record, so there was nothing to set aside
The Applicant sought to set aside a decree of Kisii HCCC No. 59 of 1996 but did not place before the court the order arising from the application dated 29th June/July 2000. In the absence of the pleadings, judgment and the impugned order, the court could not ascertain which decree was accurate or identify anything capable of being set aside.
Capacity of the Applicant to institute the application as administrator
The Applicant lacked capacity because he did not annex the Grant of Letters of Administration; without it his application on behalf of the estate cannot stand
It is trite that only a holder of a Grant of Letters of Administration may represent a deceased's estate; pleadings by a person without locus standi are void ab initio. The Applicant claimed to be administrator of the estate of Francis Makabuni Ogetuka but did not attach the grant, and so could not purport to seek orders on behalf of the estate against the Respondent.
Whether the Respondent was wrongfully joined as a party
The Respondent, having acted only for an undisclosed Interested Party and having no personal interest in the suit property, was improperly joined and his name should be struck out
The record showed the Respondent acted for an Interested Party in the review application. The Applicant failed to demonstrate any personal interest by the Respondent in the suit property or any interference with it, and the letters relied on did not mention the Respondent. It would be unjust to hold counsel responsible for his client's actions.
Legal principles established
#- A deceased person's estate may only be represented in legal proceedings by a person duly authorised, i.e. one issued with a Grant of Letters of Administration; a suit commenced without such letters is null and void ab initio
- A court cannot set aside an order that has not been presented before it; there must be an order on the record capable of being set aside
Court orders
#- 1.The Applicant's Notice of Motion dated 17th March 2021 is dismissed with costs to the Respondent
- 2.The Respondent's application dated 23rd April 2021 (striking out the Respondent as improperly joined) is allowed with costs to the Respondent
- Jurisdiction invoked
- Original jurisdiction to set aside a decree of the High Court; applications brought under Order 45 Rule 6, Order 1 Rule 10(2), Order 51 Rule 1 of the Civil Procedure Rules, 2010 and sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Doel Makabuni v Leonard Ndemo Ombachi t/a Ombachi & Co. Advocates [2021] KEELC 4767 (KLR)", Case Analysis (2021). Miscellaneous Application dated 17th March 2021 (arising from Kisii HCCC No. 59 of 1996, Pascallia Nyanchama Makabuni v Francis Makabuni Ogetuka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4767/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.