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20 judgments found.
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February 2023
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.
28 February 2023
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
27 February 2023
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.
27 February 2023
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
27 February 2023
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.
22 February 2023
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.
21 February 2023
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
21 February 2023
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.
16 February 2023
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.
15 February 2023
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
15 February 2023
15 February 2023
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.
13 February 2023
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.
13 February 2023
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.
8 February 2023
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).
8 February 2023
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.
8 February 2023
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
7 February 2023
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.
6 February 2023
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.
6 February 2023
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
6 February 2023