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Citation
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Judgment date
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| February 2023 |
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Applicant failed to show grounds to review consent divorce judgment; property division in the consent decree upheld.
Civil procedure – Review of consent judgment – Section 82 Civil Procedure Act; Order 46 r.1 – grounds: mistake/error apparent, new evidence, other sufficient reason; Consent judgments contractual and binding unless fraud, illegality, mistake or misapprehension; Parties bound by pleadings – cannot introduce unpleaded third-party claims on review; non est factum defence must be pleaded and proved.
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28 February 2023 |
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Application to amend letters of administration dismissed for failure to prove co-administrator's death; applicant ordered to pay costs.
Succession law – amendment/revocation of letters of administration – s.234(2)(d) Succession Act – inoperative grants. Burden of proof – applicant must adduce evidence (e.g., proof of death) to justify amendment of a grant
Costs – unsuccessful applicant in ex parte succession application liable personally where relief is unproven
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27 February 2023 |
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Court set aside prematurely extracted consent order issued without a filed consent or parties' appearance as void.
Civil procedure – Review of judgments – Consent orders – Consent judgment binds parties but may be set aside for fraud, mistake, misapprehension or illegality – Error apparent on face of record – Requirement that consent be filed and parties appear before court to enter consent judgment – Section 82 Civil Procedure Act; Order 46 Rule 1.
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27 February 2023 |
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Court revoked fraudulently obtained letters of administration, declared respondent a trespasser and ordered cancellation of her title.
Succession law – Letters of administration – Fraudulent procurement; grant void ab initio Land law – Registration of titles – Indefeasibility subject to fraud; cancellation of registered title Remedies – Revocation of letters of administration; declaration of trespass; costs awarded to estate
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27 February 2023 |
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Valid WILL found; administrators’ grant revoked for being procured by a fraudulent certificate of no objection; estate referred to Administrator General.
Succession law – validity of WILL – burden to prove forgery; Letters of administration – Certificate of No Objection and family meeting minutes; Revocation/annulment of grant where grant procured by fraud; Estate composition determined by valid WILL; Referral to Administrator General where administration or residue management required.
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22 February 2023 |
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Application to revoke letters of administration dismissed as improperly before court; contentious probate matters require a regular suit.
Succession law – Revocation of letters of administration – Allegations of mismanagement – Contentious probate matters must, as nearly as may be, take the form of a regular suit under section 265 – Affidavit evidence insufficient to resolve contested administration.
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21 February 2023 |
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Discovery for title and transfer documents was refused as premature because issues had not been scheduled and discovery risks fishing.
Civil procedure – discovery under Order 10 r.12 – requirements of necessity, relevance, possession and timing – discovery premature before scheduling and issue-framing
Evidence – effect of failure to file a replying affidavit – allegations in supporting affidavit stand unchallenged. Land law – allegations of fraudulent transfer by estate administrator – relevance of title and transfer documents to prove dishonesty
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21 February 2023 |
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Court dismissed defendants' oral application to stay probate proceedings, prioritizing expeditious estate administration.
Stay of proceedings pending appeal; Order 39 r.2 and lis pendens (s.6) inapplicable where parties differ; discretionary, high-threshold test for stays; oral/formal application requirements; inherent powers (s.98 CPA) and remedies (s.33 Judicature Act); prevention of undue delay in estate administration.
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16 February 2023 |
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A sole female foreign foster-parent’s application to adopt a male child was dismissed for lack of pleaded or proved special circumstances under section 45(3).
Children Act (Cap.59) s45(1)(a), s45(3) – prohibition on sole female applicants adopting male children absent special circumstances; Children Act s46 – foreign national adoption (exceptional circumstances); Best interests of the child principle; Adoption as last resort; Requirements of fostering under PSWO and recommendation weight.
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15 February 2023 |
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Application for stay of execution pending appeal dismissed for being served out of time without leave.
Civil procedure – Stay of execution pending appeal – Application dismissed for defective service where notice of motion was served out of time without leave – strict compliance with Order 5 rules required. Civil procedure – Service of process – Failure to seek leave to serve out of time attracts dismissal as penalty under Order 5 provisions. Estate administration – Allegations of administrator acting pending appeal insufficient to avoid procedural requirements for a stay
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15 February 2023 |
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15 February 2023 |
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Claim for estate share dismissed for lack of letters of administration and no disclosed cause of action.
Succession law – Letters of administration required before establishing rights to intestate estate; pleadings – plaint must disclose a cause of action; preliminary objection – plaint struck out as frivolous and vexatious; possession of estate pre-grant – duties and remedies under Succession (Amendment) Act s.57; intermeddling with estate prohibited.
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13 February 2023 |
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Court orders equal division of jointly-registered matrimonial land, awards compensation for raising a non-biological child, and grants mother physical custody.
Family law – Matrimonial property – Jointly registered land acquired before marriage; equal shares absent proof of unequal contribution; Family law – Custody – physical custody to primary carer, joint legal custody, access rights; Children – Maintenance – parental duty to maintain; Compensation – reimbursement and general damages where spouse raised non-biological child under misattributed paternity.
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13 February 2023 |
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Whether the Banda kibanja formed part of the intestate estate and whether the Letters of Administration should be revoked.
Succession law – intestate estate – disputed kibanja ownership; Administrator General – Certificate of No Objection and Letters of Administration – validity; burden of proof and authentication of documentary evidence; role of customary evidence in proving property rights; remedies—addition of co-administrators; costs.
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8 February 2023 |
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Leave to appeal granted on arguable legal question whether consolidation of two miscellaneous applications was proper.
Civil procedure — Leave to appeal — Consolidation of proceedings — Whether consolidation of a heard application awaiting judgment with an un‑heard application was proper — Preliminary objections to affidavits and mootness — Test for leave to appeal (arguable point of law, real prospect of success).
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8 February 2023 |
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Leave to appeal granted on arguable question of law about consolidation and procedural irregularities in execution.
• Civil procedure — Leave to appeal (Order 44 CPA) — Whether arguable question of law warrants leave to appeal. • Civil procedure — Consolidation of proceedings — Whether consolidation of heard and unheard applications was proper. • Execution law — Warrant of attachment and sale — Service and notice to show cause. • Evidence/procedure — Affidavits on information — Requirement to disclose source; advocate deposing affidavit and authority. • Procedure — Effect of filing notice of appeal on leave application.
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8 February 2023 |
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Whether the petitioner proved contributions sufficient to rebut the respondent’s registered title over pre‑marriage property.
Family law – divorce – proprietary claims – ownership of land alleged to have been purchased by one spouse via intermediary while abroad – burden of proof on claimant to establish monetary or non-monetary contribution and common intention to own jointly
Evidence – section 59 Evidence Act – oral hearsay inadmissible; need for direct evidence and documentary corroboration. Land law – Registration of Titles Act – certificate of title prima facie conclusive evidence of ownership absent impeachment. Property acquired before marriage does not automatically become matrimonial property; contributions must be proved
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7 February 2023 |
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Decree nisi granted for desertion and cruelty; physical custody to petitioner, equal maintenance, petitioner retains Bugolobi home.
Family law – Divorce – Grounds: desertion and cruelty established; failure to file defence—ex parte proceedings and deemed admissions; custody – legal joint, physical to primary caregiver; maintenance – equal parental contribution; matrimonial property – occupation orders where ownership not fully proved.
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6 February 2023 |
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Desertion and cruelty established divorce; children’s welfare governs custody, maintenance and retention of the matrimonial home.
• Divorce – grounds – desertion and cruelty established by prolonged separation and conduct causing emotional and financial harm. • Civil procedure – failure to file answer – deemed admission but proof still required. • Matrimonial property – entitlement requires proof of ownership or contribution; court retained matrimonial home for petitioner. • Children – welfare paramount; joint legal custody, physical custody to primary carer; equal parental maintenance obligation.
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6 February 2023 |
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Consent judgments are binding contracts; they are not normally appealable and must be set aside by the court that recorded them.
Family law – Consent judgment – Binding effect of consent settlements – Consent judgment treated as contract and binding when endorsed by court. Civil procedure – Remedy against consent decrees – Exclusive remedy is application to the court which recorded the compromise to set aside on grounds such as fraud, collusion, illegality or mistake; appeal is generally incompetent. Ancillary relief – Stay of execution pending an incompetent appeal is liable to be struck out
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6 February 2023 |