Civil Suit No Dr. MFP
of 192 was filed by the plaintiff against the defendants under Order 34
of the Civil Procedures Rules originating summons. Before the hearing commenced Mr. Mugamba
the learned counsel appearing for the defendants raised a preliminary objection and hence this ruling to resolve the matter. He argued that the summons were inappropriate and incompetent because they were brought under Order 34
of the Civil Procedure Rules. A casual look at order 34
of the Civil procedure Rules shows that the executors and extra may seek remedies as specified in the order for determination. The status of the plaintiff could be found in his affidavit where he averred that he is the plaintiff and the natural son of the Late Ezira Nyakana
. With due respect that does not make any impression within the provisions of order 34
rule 1 of the Civil Procedure Rules. So the plaintiff therein had no leeway (locus standi
) to take the originating summons.
Secondly Mr. Mugamba
contended that he had the occasion to look Odgers on pleadings, and practice 20th Edition at P. 352 on originating
summons which provides that where the main point at issue is one for construction of a document or statute or one of pure law then that is the appropriate procedure for the originating summons.
He submitted it was not appropriate where there was likely to be any substantial dispute of facts. It was also inappropriate if the plaintiff thought the action was one in which summary judgment could be obtained. He continued the contention in the originating summons seemed to rest on two limbs. The first being the mismanagement of the Estate by persons entrusted with its administration that is
to say the defendants and the other limb was the construction of the will concerning the management of the Estate.
I was referred to the case of Eseza Namirembe V Kizito 1973 I ULR Page 88 at 91 where it was decided by Justice Saied J
as he then was that ‘not withstanding the foregoing and considering what meagre
facts that appear in the affidavits it seems clear to me that the deponed
based the reliefs
which he seeks on imputations of willful default on the part of
the defendant in the administration of the Estate, sufficient authority exists to the effect that an enquiry should not be ordered Under order 34 where willful,
default is alleged on the part of the administrator The learned Counsel Continued that the said Judge went ahead to quote with approval the case of Bhag Dhasi
V Medhi Ichan
1965 EARP. 94 (a Kenyan case) where their lordships were dealing with a case brought under order 36 of the Kenyan CPR
originating summons which is similar to our order 34 of the Civil Procedure Rules.
Where it was held that the scope of enquiry which could be made on an originating summons and the ability to deal with a contested case was very limited and in the same case it was held that an inquiry should not be ordered Under Order 36 where
willful default was alleged on the part of the administrators.
In view of the authorities referred to above the learned Counsel submitted that the application concerning management of the Estate by the Administrator/Executors should not have been brought under the originating summons. The other limb related to the will of Ezera Nyakana
submitted that the instant case was functus
officio as far as the matter was concerned. All the aspects put in question were the subject of Dr. MFP
84/89 which if any party was aggrieved with that decision could have appealed to the Supreme Court. The originating summons as they therefore appear in the instant case dismissed with costs because the plaintiff had no cause for so acting and there is no merit in the case.
Counsel representing the plaintiff commenced his submission by a brief review of the facts of this case. That before any proceedings the lawyer had the right to address the Court on a few issues. The deceased Ezera Nyakana
died on 30th
December, 1988. He left a will which was executed on 10/5/88. The said will is part of the plaintiffs affidavits dated 7th
August 1992. That will is annexture
of which is before this court according to Court records. The said will was proved valid ex. HCCS NO. DR/MF 84/89
which case was between the plaintiff and the defendant parties herein the summons. Subsequently probate of the will was granted to Beatrice Nyakana Kobusinge
, D Nyakana
, Samuel Nyakana
which powers were granted on 20th
February 1991 vide probate Administration Cause
.No. DR MFP
9/1989. In the circumstances Paragraphs 1, 3, and 4 of the first defendants affidavit dated 10/9/92 were admitted therefore the preliminary objection raised by Counsel as to the validity of the will be overruled because they have abandoned that ground. He continued clause 3
of the will dated 10th
May 1985 empowers the executor to administer the estate in the names known as ED Nyakana & Sons Limited
to which Company the testator bequeathed and devised all his properties movable save those which were expressly excluded by the will. Therefore paragraph 5 of the first defendants affidavit dated 15/9/92 was conceded to. If the learned Counsel had addressed himself to these issues the preliminary objection could not have arisen. A regards the validity of the will that was not going to be contested because it was proved as already submitted to.
As regards the first objection by his learned brother that clearly pointed out that a devises could bring out originating summons. That was mentioned by him. As already submitted the plaintiff affidavit was accompanied by the will of the deceased dated 10/5/88. Any annextures
attached to an affidavit becomes part of the pleadings. In the circumstances he submitted that the plaintiff had the locus standi
for reasons that clause 6 of Ezera