Wakilii

Khamis v Kirobe and Others (Civil Appeal No. 18 of 1954)

East African Court of Appeal · [1950] EACA 195 · 1950 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal by leave from an order of the Supreme Court of Kenya in a partition suit
Decision
Matter remitted to the Supreme Court for rehearing with a view to passing a preliminary decree in accordance with the Partition Acts

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that while a partition suit may commence without all interested persons being parties, it is essential that at the earliest possible stage all co-owners be identified and given the opportunity to be heard on all matters requiring inquiry. An order for sale made without serving known co-owners who have a statutory right to notice is a nullity and must be set aside ex debito justitiae. The appeal was allowed and the matter remitted for rehearing.

Outcome

Matter remitted to the Supreme Court for rehearing with a view to passing a preliminary decree in accordance with the Partition Acts

Facts

Suleman bin Jabu died possessed of a 12-acre plot at Mombasa. His four sons and nine daughters inherited the land in specified shares and were registered as proprietors before 1931. By 1951, all but one child were believed dead. Three respondents and another person sued for partition by sale. An order was made by consent on 25 March 1952 providing for defendants to purchase the plaintiffs' shares, failing which the land would be sold. The purchase did not proceed. The appellant, son of one of the deceased sons, obtained letters of administration de bonis non to his father's estate and applied to be joined as a defendant. He was joined but his subsequent application to set aside the consent order was dismissed on the ground that the Court had no jurisdiction to set it aside. The order had been made without serving or notifying numerous other co-owners whose interests exceeded a moiety of the land.

Issues

  1. Whether the Supreme Court had jurisdiction to make an order for sale in a partition suit without all interested co-owners being served or given notice.
  2. Whether an order made without serving persons statutorily entitled to notice is a nullity that must be set aside ex debito justitiae.
  3. Whether the appellant, as administrator of a deceased co-owner's estate, was entitled to have the consent order of 25 March 1952 set aside.

Orders

  • Appeal allowed.
  • Ruling and order of the Supreme Court dated 14 September 1953 set aside.
  • All proceedings in the suit other than the plaint, the proceedings to join the appellant as a defendant, the defences and the affidavits filed set aside.
  • Parties at liberty to apply to the Supreme Court to amend the subsisting proceedings.
  • Suit to be reheard with a view to passing a preliminary decree in the form usual in partition actions.
  • Costs of the appeal to be paid by the respondents personally to the appellant.
  • Respondents personally to pay the appellant's costs of the application to join him as a party and his costs of all subsequent proceedings set aside by this order.
  • No costs, save as aforesaid, of the affidavits left on the file for future use.
  • Costs of the pleadings reserved to the Supreme Court.
  • Save as aforesaid, the plaintiffs and defendants to bear their own costs of all proceedings in the Supreme Court.

Rules and key headnotes

Partition — Procedure — Necessity of Joining All Interested Parties
While a partition suit may be commenced without all interested persons being made parties, it is essential that at the earliest possible stage it should be ascertained with precision who are interested in the property and in what shares, and on all matters into which inquiry must be made, all co-owners are entitled to be heard.
Partition — Preliminary Decree — Requirements Before Order for Sale
Under the Partition Acts 1868 and 1876, before an order for sale can be made, the court must ascertain who is entitled to or interested in the property and in what shares, what the property is and what incumbrances affect it, whether incumbrancers consent to partition or sale, and whether partition or sale will be more beneficial to the general body of co-owners, and all co-owners are entitled to be heard on these matters.
Partition — Service Requirements — Section 9 of Partition Act 1868
The preliminary decree in a partition action must, unless all co-owners are already before the Court, either direct service on the remainder of them of notice of the preliminary decree under section 9 of the Partition Act 1868, or dispense with service but order advertisement under section 3 of the Partition Act 1876, and persons so served or claiming in consequence of advertisements are entitled to be heard in all respects as if parties to the action.
Nullity — Orders Made Without Statutory Notice — Inherent Jurisdiction to Set Aside
Where an order is improperly made without serving a person known to be affected by it and having a statutory right to be served before it can be made, the order is a nullity in the sense that it must be set aside ex debito justitiae, and in cases of nullity the Court has inherent jurisdiction to set aside its own order without the necessity of an appeal.
Partition — Right of Co-Owner Not Party to Object — Section 9 of Partition Act 1868
The provision in section 9 of the Partition Act 1868 that it shall not be competent to any defendant in the suit to object for want of parties does not diminish the right of a co-owner who is not a party to be heard before any order prejudicial to his proprietary rights can be made.

Legislation cited (3)

  • Partition Acts 1868 s.9
  • Partition Acts 1876 s.3
  • East African Court of Appeal Rules 1954 rule 74(5)

Cases cited (12)

  • Patel v Patel (6 EACA 48)
  • Waite v Bingley (21 Ch D 674)
  • Devonport v King (49 LT 92)
  • Buckingham v Sellick ((1870) 22 LT 370)
  • Mildmay v Quicke (20 Eq 537)
  • Gilbert v Smith (2 Ch D 686)
  • Sykes v Schofield (14 Ch D 629)
  • Peters v Bacon (8 Eq 125)
  • Powell v Powell (10 Ch App 130)
  • Craig v Kunseen ((1943) 1 AER 108)
  • Malkarjun v Narhari (27 IA 216)
  • Arnison v Smith (40 Ch D 567)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Khamis v Kirobe and Others (Civil Appeal No. 18 of 1954) [1950] EACA 195 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.