[2022] KEHC 2002 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 154 OF 2019

IN THE MATTER OF ARTICLES 2, 2(2), 2(4), 20(2), 20(3) (B), 27,

47 AND 189 (1) (a) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF ALLEGED IRREGULAR EXECUTION

OF A DECREE AND ATTACHMENT OF PETITIONER’S MOVABLE

PROPERTIES AND VIOLATION AND INFRINGEMENT OR THREAT

TO FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PETITIONER

UNDER ARTICLES 189(1)(a) OF THE CONSTITUTION OF KENYA AND

CONTRAVENTION OR THREAT OF CONTRAVENTION OF ARTICLES 20(2),

20(3)(b), 27, 47 AND 189(1)(a) OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF SECTION 13 A(1) AND 21(4) OF

THE GOVERNMENT PROCEEDINGS ACT, CAP 40 OF

THE LAWS OF KENYA, GOVERNMENT PROCEEDINGS

ACT (AMENDMENT) ACT, NO. 35 OF 2015 AND ORDER 28,

RULES 2(1)(A), (2) AND (4) OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF INTERPRETATION OF ARTICLES

189(1)(A) OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

BETWEEN

COUNTY GOVERNMENT OF MURANG’A.........................................................PETITIONER

VERSUS

NDWIGA NJAGI.............................................................................................1ST RESPONDENT

MESSRS, CHADOR AUCTIONEERS..........................................................2ND RESPONDENT

RULING

THE PETITION

1. The Petitioner/Applicant through a Notice of Motion dated 9th December 2020 and supported by Supporting Affidavit by Emily W. Kimani sworn on even date seek the following orders:-

a) Prayer No. 1 spent.

b) That this Honourable Court do issue an order of injunction restraining the Respondents by themselves, and/or through Messrs. Chador Auctioneers and/or by their employees, servants, agents, auctioneers from disposing and/or selling the applicant’s motor vehicles registration numbers 21CG 004A and 21CG 027A pending the hearing and determination of this Application.

c) That the ex-parte judgment and/or orders issued on 2nd December 2020 and all consequential orders be set aside and consequently the Petition herein and the Chamber Summons dated 16th April 2019 be reinstated.

d) That the Honourable Court be pleased to direct that the process servers and/or the Respondents who have alleged to have filed (sic served) the Applicant’s Advocates be availed for cross-examination.

e) That the Honourable Court be pleased to issue such further Orders as it may deem fit in the interests of justice.

f) That the costs of this Application be provided for.

THE 1ST AND 2ND RESPONDENTS’ RESPONSE

2. The Respondents are opposed to the application and rely on Replying Affidavit sworn on 22nd December 2020.

BRIEF FACTS OF THE APPLICATION

3. On 2nd December 2020 the Petition was dismissed for want of Prosecution.

4. The Petitioner/Applicant aggrieved by the dismissal of the suit filed the instant application seeking various orders.

ANALYSIS AND DETERMINATION

5. Upon perusal of the pleadings, rival submission and authorities relied upon, I find only one issue arise for consideration:-

a) WHETHER THE EX-PARTE ORDERS DATED 2ND DECEMBER 2020 SHOULD BE SET ASIDE.

6. Under the provisions of Order 51 Rule 15 of the Civil Procedure Rules. It is provided:-

“The Court may set aside an order made ex parte”

Order 10, rule 11 of the Civil Procedure Rules provides that:

“Where judgment has been entered under this Order the Court may set aside or vary such Judgment and any consequential decree or order upon such terms as are just.”

7. The Applicant/Petitioner in seeking prayers stated in the application urge that the requisite time for dismissal of the suit for want of prosecution had not lapsed as the last action by the Petitioner in the matter was on 23rd March 2020 and that on 7th July 2020 written submission were filed. It is further contended the orders of 2nd December 2020 were obtained by the Respondents through non-disclosure of material facts, without effecting service on the Petitioners Counsel. It is further urged the application dated 16th April 2019 is missing in the Court file despite having been filed on 23rd march 2020, as directed by Court on 13th February 2020.

8. The Petitioner/Applicant further urge on perusal of the Court file they noted that when this matter came up for mention on 5th October 2021, and 23rd November 2021 for Notice to Show Cause they had not been served, that the dismissal orders issued on 2nd December 2020 condemned the Petitioner unheard as the Counsel was never served.

9. I have perused the Court file to confirm the averments of non-service and the last appearance of the Petitioner in this matter. It is indeed correct that the last appearance on part of the Petitioner’s Counsel was on 13th February 2020 which is less than 1 year to the date of dismissal of the suit on 2nd December 2020. In addition there is no evidence of service with mention notice for 5th October 2021, and 23rd November 2021 and 2nd December 2021 as there is no affidavit of service on record. In view whereof I find that the Petitioner/Applicant was condemned unheard and for those reasons, I find the Petitioner/Applicant has sufficiently met the threshold for setting aside or varying the orders issued on 2nd December 2020.

10. The upshot is that the application dated 9th December 2020 is allowed in the following terms:-

a) An Order of injunction be and is hereby issued restraining the Respondents by themselves, and/or through Messrs. Chador Auctioneers and/or by their employees, servants, agents, auctioneers from disposing and/or selling the applicant’s motor vehicles registration numbers 21CG 004A and 21CG 027A pending the hearing and determination of the Petition.

b) The ex-parte judgment and/or orders issued on 2nd December 2020 and all consequential orders be and are hereby set aside.

c) Costs of the application to abide the outcome of the Petition.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 3RD DAY OF MARCH, 2022.

.......................

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA