[2014] KEHC 2752 (KLR)
The court found that, while the applicant alleged late service of the Preliminary Objection and Replying Affidavit, there was no affidavit of service or evidence to establish that service was effected after 5 p.m. on Friday, which would have triggered the deeming provision of Order 51 rule 9. In the absence of such...
Source-derived case information.
- Citation
- [2014] KEHC 2752 (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 Replying Affidavit
- Outcome
- Preliminary Objection and Replying Affidavit not struck out; substantive application to be heard expeditiously.
- Judges
- F Gikonyo
- Legal Topics
- Service of Process, Preliminary Objection, Replying Affidavit, Order 51 Civil Procedure Rules
- 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 Replying Affidavit
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 service under Order 51 rule 9 of the Civil Procedure Rules.
Ratio Decidendi
The court found that, while the applicant alleged late service of the Preliminary Objection and Replying Affidavit, there was no affidavit of service or evidence to establish that service was effected after 5 p.m. on Friday, which would have triggered the deeming provision of Order 51 rule 9. In the absence of such evidence, the court could not conclude that the service was improper or that the respondent failed to comply with the three clear days requirement under Order 51 rule 14. Consequently, the court declined to strike out the Preliminary Objection and Replying Affidavit and directed that the substantive application be heard expeditiously.
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
15 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 is 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