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29 judgments found.
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November 2016
Temporary injunction refused where administrators held letters and no evidence of irreparable harm to the estate.
Civil procedure — Interim injunction — Requirements: prima facie case, irreparable injury, balance of convenience — Failure to show irreparable harm warrants refusal
Probate — Administration of estates — Letters of administration — Grant does not justify interlocutory restraint absent evidence of alienation or loss
23 November 2016
Challenge to letters of administration failed: widow’s foreign marriage accepted; plaintiffs failed to prove dependency or fraud.
Succession law
— Validity of foreign marriage — Effect of foreign (Sikh) marriage on entitlement to letters of administration
— Grant and revocation of letters of administration — Just cause, fraud, and requirement to exhibit inventory and accounts
— Dependants and beneficiaries — Proof of ‘wholly or substantially dependent’ under the Succession Act
14 November 2016
October 2016
Mother appointed manager after court found respondent mentally unsound and incapable, with bond, restrictions, and reporting obligations.
Mental health law — Management of estate of person of unsound mind — Requirement for judicial inquiry and contemporaneous medical evidence under Rules and Mental Treatment Act
Capacity — Substituted vs supported decision‑making — Presumption of legal capacity and best‑interests assessment in light of UN Convention on the Rights of Persons with Disabilities Article 12
Procedure — Service and evidentiary requirements for applications under the Administration of Estates of Persons of Unsound Mind Act — Rule 3(2), Rule 4(1) and Forms A and B
13 October 2016
September 2016
Review allowed where a clerical error in the plaint led to wrongful dismissal of a timely negligence claim.
Civil procedure
— Review of judgment — Error apparent on the face of the record — Typographical/clerical error causing miscarriage of justice — Civil Procedure Act s 82; Order 46
— Limitation — Effect of pleading error on calculation of limitation period — Suit reinstated where error rendered dismissal unjust
21 September 2016
Court upheld a 70:30 equitable division of matrimonial property after reconciling competing valuations and a locus inspection.
Family law — Divorce — Property division — Equitable apportionment of matrimonial property after reconciling competing valuations
Civil procedure — Appeals — Timeliness of appeal against valuation and property orders — Appeal filed within 30 days upheld
Evidence — Valuation evidence — Court’s power to appoint/accept valuers and to visit locus for reconciliation of divergent reports
2 September 2016
August 2016
16 August 2016
16 August 2016
16 August 2016
July 2016
Registry’s misplacement of the file excused late service; preliminary objection overruled with no costs.
Civil procedure
— Service of process — Service out of time where delay caused by registry misplacing the mother file — Order 5 r.1(2) CPR
— Preliminary objection — Requirement to plead and give notice of objection — Affidavit averments sufficient to raise preliminary point
— Procedural irregularity — Court omissions should not be visited on litigants
15 July 2016
High Court set aside ex‑parte magistrate’s judgment for lack of service and appearance of bias, ordering a retrial.
Civil procedure — Revision — Whether High Court may set aside ex‑parte magistrate’s judgment for lack of proof of service — Civil Procedure Act s 83 — Requirement of affidavit of service
Judicial conduct — Impartiality — Appearance of bias arising from magistrate’s prior conduct and referral of file — Test of “real danger” of bias (R v Gough)
14 July 2016
Court allowed joinder of respondents as co-defendants because their presence was necessary to adjudicate the estate dispute.
Civil procedure
— Joinder of parties — Order 1 r.10(2) — Addition of parties necessary for effectual and complete adjudication
— Estate administration — Third-party purchasers and title cancellation — Joinder to avoid multiplicity of suits and protect interests
14 July 2016
13 July 2016
High Court may appoint foreign guardians and permit child’s travel where such placement is in the child’s best interests.
Family law
— Guardianship — Appointment of foreign nationals as guardians — Best interests of the child principle
— Statutes — Non‑retrospectivity of Children (Amendment) Act 2016 — New law not applied to pending application
Constitutional/Jurisdiction — High Court inherent jurisdiction — Authority to make guardianship and travel orders under Article 139 and the Judicature Act
13 July 2016
Application dismissed where applicant's attorney lacked authority under a defective power of attorney non‑compliant with s148.
Civil procedure — Power of attorney — Authority to institute proceedings — Construction of the instrument
Registration of Titles Act — Execution of instruments — Attesting witness certificate for mark — s 148 — Non‑compliance renders instrument not duly executed
8 July 2016
Court revoked joint letters of administration after a co-administrator’s death and regranted to the surviving administrators.
Succession law — Administration of estates — Revocation of letters of administration — Grant becomes inoperative on death of a joint administrator — Succession Act s234(2)(d)
Civil procedure — Grant revocation and fresh grant — Revocation required to remove an administrator’s name from a public grant; fresh grant may be made without reproving all original matters
Estate administration — Protection of beneficiaries’ interests — Court’s discretion to revoke inoperative grants to ensure due administration
1 July 2016
Court revoked an inoperative joint grant after a co-administrator's death and made a fresh grant to surviving administrators.
Succession law — Administration of estates — Revocation of letters of administration upon death of co-administrator — Succession Act s 234(2)(d)
Civil procedure — Probate applications — Revocation and regranting of letters of administration — Order 52 Civil Procedure Rules
1 July 2016
June 2016
Review dismissed: no error apparent on the face of the record; beneficiaries may consent to administrators, including the respondent.
Civil procedure
— Review of judgment — Error apparent on face of record — Must be manifest and not require extraneous matter
— Aggrieved person — Beneficiaries affected by estate judgment qualify to seek review
— Representation — Power of attorney establishes capacity to depose affidavit in proceedings
28 June 2016
Court recalled a consent judgment after undisclosed lease and struck an unauthorised affidavit, ordering review or re-hearing.
Civil procedure
— Competence of affidavits — Affidavit sworn on behalf of a party without written authority is incurably defective — Order 3 r1-2; Order 1 r12; Order 7 r4 CPR
— Consent judgments — Recall/review where consent procured by misrepresentation, concealment or discovery of new material facts — Remedies include variation or rehearing; Civil Procedure Act ss 82, 98; Order 46 r1(b); Order 52 r1 & r3 CPR
28 June 2016
Preliminary objection overruled: no proven former-client relationship or prejudice to require advocate's recusal.
Legal Profession — Advocates' professional conduct — Conflict of interest and representation of former clients — Advocates (Professional Conduct) Regulations SI 267-2, rules 4, 7, 10
Civil Procedure — Representation and authority — Acting without client instructions — Advocates (Professional Conduct) Regulations SI 267-2, rule 2(1)
28 June 2016
Court nullified former administrator’s purported inventory, exercising inherent jurisdiction under s98 and s14 where no review was sought.
Civil procedure — Inherent jurisdiction — Nullification of administrator's accounts and actions — Civil Procedure Act s 98 — Judicature Act s 14
Succession law — Administration of estates — Validity of inventory filed prior to judgment and duty to seek review — Order 46 CPR
13 June 2016
Forgery of letters of administration led to fraudulent land registration—court ordered deregistration, administration and damages.
Property & Succession — Administration of estate — Forged letters of administration and fraudulent registration of title — Registration of Titles Act s.77
Succession law — Administration priority — Sole surviving child entitled to letters of administration — Succession Act ss.27, 202
10 June 2016
May 2016
Application to set aside ex parte orders dismissed; court found filing and tampering allegations unsubstantiated.
Civil procedure
— Order 17 rules 3 & 4 CPR — Ex parte proceedings where party absent — Effect of rule 4 decisions as merits disposals
— Evidence and court record — Allegation of doctored record — Requirement for corroboration and calling of Court Clerk where necessary
5 May 2016
April 2016
Court reviewed harsh conditional stay and granted unconditional stay pending leave to appeal due to hardship and inability to comply.
Civil procedure
— Review of court orders — Application under O.46 CPR and ss.82, 98 CPA — "Any other sufficient reason" includes hardship and injustice
— Stay of execution — Conditions amounting to de facto enforcement are reviewable
— Security measures — Retention of passport affecting ability to comply with stay conditions may justify review
19 April 2016
March 2016
31 March 2016
February 2016
23 February 2016
Interim injunction refused where land was already alienated and applicant failed to show irreparable harm.
Civil procedure — Interim injunction
— Prima facie case and triable issues
— Irreparable harm and balance of convenience
Succession/Property — Administration of estate — Alleged forgery of grant and challenged alienation pending main suit
4 February 2016
3 February 2016
January 2016
Court granted temporary injunction preserving the estate pending trial but refused the proposed interim administrator for lack of neutrality.
Succession law
— Interim injunctive relief — Preservation of estate pending challenge to letters of administration — Succession Act s 218; Civil Procedure Rules Order 41
— Appointment pendente lite — Requirements of neutrality and absence of conflicting interest for interim administrators — Suit touching validity of letters of administration
27 January 2016
Court granted joint letters associating the applicant with the minor heir’s next friend, rejecting an unproven customary wife's claim.
Succession law
— Intestate succession — Entitlement to letters of administration and precedence determined by greatest interest under S.201 and S.28
— Customary marriage — Proof and registration — Failure to prove full dowry or register a customary marriage undermines entitlement to benefit
— Births and Deaths Registration — Birth certificate as conclusive proof of parentage absent rebuttal
6 January 2016