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High CourtAllowed· [2018] KEHC 9881 (KLR)

In re Estate of the deceased - Flora Tabu Bali & another (Applicants) v Respondent

High Court of Kenya
27 November 2018
AMA.O. Muchelule
1,407 words in judgment
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The bottom line

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If a court order is based on the false claim that no one objected, that order can be overturned.

What this practically means

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Executive summary

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The deceased died on 19th April 1992. On 27th January 2000 Flora Tabu Bali and David Mtema Bolly, as widow and son of the deceased, petitioned for letters of administration intestate, which were granted on 19th April 2000. The respondent, claiming to be the deceased's second wife with three adult children, filed summons on 4th July 2001 seeking revocation of the grant on grounds of fraud and exclusion of herself and her children. That application was dismissed on 8th November 2011 for want of prosecution. The grant was confirmed on 27th October 2015. The respondent's subsequent revocation application of 9th September 2016 was withdrawn on 2nd November 2016 with leave to file afresh. She then filed an application on 4th November 2016 seeking review of the dismissal of her 2001 application and its reinstatement. On 14th November 2017 the court allowed that application as unopposed. The 1st applicant then applied by summons dated 27th February 2018 to set aside those orders, contending they were obtained through gross misrepresentation by the firm of T.O. Nyang'au Kemunto & Co. Advocates, since the applicants had filed a joint affidavit and written submissions opposing the application. The respondent maintained the application was unopposed. Examining the record, the court found the applicants' joint affidavit dated 14th November 2016 and submissions dated 5th October 2017 on file, held that counsel had misdirected the court, allowed the application, set aside the orders of 14th November 2017, and directed that the application dated 4th November 2016 be heard afresh, with costs in the cause.

Key legal issues

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Whether orders granted on the basis that an application was unopposed should stand where the record shows a replying affidavit and submissions were filed

Holding

The orders of 14th November 2017 were set aside because the application dated 4th November 2016 was in fact opposed by a joint affidavit and written submissions, and counsel for the respondent misinformed the court that it was unopposed.

Reasoning

The court examined the entire file and found the applicants' joint affidavit dated 14th November 2016 (filed 15th November 2016) and written submissions dated 5th October 2017 (filed 6th October 2017) on record opposing the application. Counsel's statement that the application was unopposed was therefore a misdirection that deprived the applicants of a hearing, justifying setting aside the orders and directing a fresh hearing.

p. 2

Legal principles established

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  • A party is entitled to be heard on its responses before an application marked as unopposed is allowed; a court order obtained through counsel's misrepresentation that an application was unopposed is liable to be set aside.

Court orders

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  1. 1.The court's orders made on 14th November 2017 allowing the application dated 4th November 2016 are set aside
  2. 2.The application dated 4th November 2016 is to be set down afresh for hearing
  3. 3.Parties to simultaneously file and serve any further affidavits and submissions in response to or opposing the application dated 4th November 2016 within 14 days
  4. 4.Matter to be mentioned on 11th December 2018 to confirm compliance and for further directions
  5. 5.Costs in the cause
Jurisdiction invoked
Inherent powers of the High Court in succession proceedings to set aside orders obtained by misrepresentation (Law of Succession Act cause; no specific provision cited)

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, "In re Estate of the deceased - Flora Tabu Bali & another (Applicants) v Respondent", Case Analysis (2018). . Source:

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