[2014] KEHC 2552 (KLR)
The court held that, in the absence of an affidavit of service or evidence indicating the actual time of service on Friday, it could not conclusively determine whether the service was effected after 5 p.m. and thus deemed to have occurred on the following Monday. Without such evidence, the court was unable to strike...
Source-derived case information.
- Citation
- [2014] KEHC 2552 (KLR)
- Parties
- Applicant: Bellevue Development Company Limited; Respondent: Vinayak Builders Limited; Respondent: Norman Mururu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 571 of 2011
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Service of Documents
- Outcome
- Preliminary Objection and Replying Affidavit not struck out; substantive application to be heard expeditiously.
- Judges
- F Gikonyo
- Legal Topics
- Service of Documents, Preliminary Objection, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bellevue Development Company Limited
Applicant
Vinayak Builders Limited
Respondent
Norman Mururu
Respondent
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Service of Documents
Legal Issues
- 1 Whether the Preliminary Objection and Replying Affidavit should be struck out for failure to comply with Order 51 rule 14 of the Civil Procedure Rules regarding timely service.
- 2 Whether service effected on a Friday constitutes proper notice under the Civil Procedure Rules.
Ratio Decidendi
The court held that, in the absence of an affidavit of service or evidence indicating the actual time of service on Friday, it could not conclusively determine whether the service was effected after 5 p.m. and thus deemed to have occurred on the following Monday. Without such evidence, the court was unable to strike out the Preliminary Objection and Replying Affidavit for non-compliance with the three clear days rule. The court emphasized the importance of fair hearing and avoidance of ambush, but found that the procedural requirements had not been sufficiently proven to have been breached in this instance. Consequently, the court declined to strike out the documents and directed that the...
Court Disposition
Preliminary Objection and Replying Affidavit not struck out; substantive application to be heard expeditiously.
Orders
- The Preliminary Objection and Replying Affidavit are not struck out.
- The substantive application shall be heard expeditiously.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO 571 OF 2011
BELLEVUE DEVELOPMENT
COMPANY LIMITED………….….……………PLAINTIFF/APPLICANT
VERSUS
VINAYAK BUILDERS LIMITED …...1ST DEFENDANT/RESPONDENT
NORMAN MURURU………………….2ND DEFENDANT/RESPONDENT
RULING
[1] When the application dated 13th June, 2014 came up for hearing on 2nd July, 2014, Mr Muturi for the Applicant applied for the Preliminary Objection and Replying Affidavit filed by the Respondent to be struck out for they offended order 51 rule 14 of the Civil Procedure Rules. The complaint lay in the fact that the P.O. and the Replying affidavit were served on him on the previous Friday, and so, the two filings were not served ‘’not less than three (3) clear days before the date for hearing’’ as required by Order 51 of the Civil Procedure Rules. Mr Mutubwa insisted they served in accordance with the law.
[2] Order 51 rule 14 requires a replying affidavit and a notice of preliminary objection to be filed and served on the applicant ‘’not less than three (3) clear days before the date for hearing’’. The requirement in the said rule is a matter of fair hearing as it avoids what I call ‘’practice by ambush’’ of the Applicant with serious evidentiary material that may require thoughtful consideration. I think the quarrel here is based on the fact that service was on Friday, the 27th June, 2014. But, Order 51 rule 9 of the CPR must be satisfied if I should hold that there were no three clear days left to the date of hearing, i.e. 2nd July, 2014. It provides that ‘’service effected after five in the afternoon on Friday is deemed to have been effected on the following Monday’’.There is no affidavit of service or an affidavit by the advocate for the Applicant which the Court can use to ascertain the actual time of service; the important aspect is that it must have been after five in the afternoon for the service to be taken to have been effected on the following Monday. For that reason, I am not able to strike out the P.O. and the Replying affidavit. Instead I direct the substantive application to be heard expeditiously. It is so ordered.
Dated, signed and delivered in court at Nairobi this 6th day of October, 2014
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F. GIKONYO
JUDGE