[2010] KEHC 2834 (KLR)
The court found that the applicant was properly served with the hearing notice as evidenced by the affidavit of service on record. The applicant did not provide sufficient evidence to rebut the presumption of proper service. Furthermore, there was no indication that the respondent had filed any grounds of opposition...
Source-derived case information.
- Citation
- [2010] KEHC 2834 (KLR)
- Parties
- Applicant: Elizabeth Awuor Mhunda; Respondent: Raphael Ogola Ochieng
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 67 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Previous Orders
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Setting Aside Orders, Service of Process, Ex Parte Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Awuor Mhunda
Applicant
Raphael Ogola Ochieng
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Previous Orders
Legal Issues
- 1 Whether the applicant was properly served with the hearing notice for the application heard on 4.6.2002.
- 2 Whether failure to attend court by the applicant was justified due to lack of service.
- 3 Whether the orders made on 4.6.2002 and subsequent orders should be set aside.
Ratio Decidendi
The court found that the applicant was properly served with the hearing notice as evidenced by the affidavit of service on record. The applicant did not provide sufficient evidence to rebut the presumption of proper service. Furthermore, there was no indication that the respondent had filed any grounds of opposition or replying affidavit to the application, implying that even if the applicant had attended, the application would likely have proceeded ex parte. Consequently, there was no merit in the application to set aside the orders, and it was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the ruling delivered on 4.6.2002 and all subsequent orders is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA
Miscellaneous Application 67 of 2001
ELIZABETH AWUOR …………………………………APPLICANT
VERSUS
RAPHAEL OGOLA OCHIENG ………………………RESPONDENT
RULING
The petitioner seeks an order that the ruling delivered on 4. 6.2002 he set aside and that all subsequent orders two he set aside.The ground for the application is that the petitioner was not served with a hearing notice to attend court on 4. 6.2002.
The application is opposed by the Respondent.When the applicationdated 10/2/2001 came up for hearing on 4. 6.2002 the petitioner is shown to have been was absent.
A process server had filed an affidavit of service indicating that the petitioner was served with a hearing notice on 6. 4.2002. The learned Judge – Hon. Mr. Justice Ringera informed that the petitioner was duly served.I have no reason to differ with him on that finding.
I have read through the pleadings filed herein the application dated 10. 2.2001 was filed in court on 9. 5.2001. According to the record, the affidavit of service filed by the prove of service on 5. 6.2001 it is indicated that the said application was served on the petitioner on 12. 5.2001. I did not come across any grounds of opposition on a replying affidavit filed by the Respondent/Applicant in that application.The implication is that even if the Petitioner was present in court on 4. 6.2002 the application would have probably proceeded exparte by the applicant/Respondent.
I therefore see no merit in this application which I dismiss with costs to the respondent, Elizabeth Awuor Mhunda.
Dated this 18th day ofMay 2010.
D.A ONYANCHA
J U D G E