[2012] KEHC 1943 (KLR)
The court found that the respondent's failure to respond to the application for a temporary injunction was due to an administrative error in the advocate's office, not a deliberate attempt to delay or obstruct justice. The right to be heard is a cardinal principle, and denying it in these circumstances would be...
Source-derived case information.
- Citation
- [2012] KEHC 1943 (KLR)
- Parties
- Appellant: Evans Wekesa Wanyonyi; Respondent: Daniel Wekesa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 98 of 2011
- Procedural Posture
- Civil Appeal / Application to Set Aside Ex Parte Orders and Allow Response to Injunction Application
- Outcome
- Application allowed; ex-parte proceedings and ruling set aside.
- Judges
- AO Muchelule
- Legal Topics
- Ex Parte Orders, Right to Be Heard, Setting Aside Orders, Temporary Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Wekesa Wanyonyi
Appellant
Daniel Wekesa
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Ex Parte Orders and Allow Response to Injunction Application
Legal Issues
- 1 Whether the ex-parte proceedings and ruling should be set aside due to the respondent's failure to respond caused by an administrative error.
- 2 Whether the right to be heard was violated by proceeding in the absence of the respondent.
- 3 Whether any prejudice would be occasioned to the appellant by reopening the application.
Ratio Decidendi
The court found that the respondent's failure to respond to the application for a temporary injunction was due to an administrative error in the advocate's office, not a deliberate attempt to delay or obstruct justice. The right to be heard is a cardinal principle, and denying it in these circumstances would be unjust. The appellant did not demonstrate that setting aside the ex-parte proceedings would cause irreparable prejudice. Therefore, the court exercised its discretion to set aside the ex-parte proceedings and ruling, allowing the respondent to file a replying affidavit and the appellant to respond, with costs to the respondent.
Court Disposition
Application allowed; ex-parte proceedings and ruling set aside.
Orders
- Ex-parte proceedings of 31/10/2011 and ruling of 12/3/2012 set aside.
- Respondent granted 7 days to file and serve a replying affidavit to the application dated 7/10/2011.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Appeal 98 of 2011
EVANS WEKESA WANYONYI...........................................................APPELLANT
~VRS~
DANIEL WEKESA.............................................................................RESPONDENT
(Being appeal from the Judgment of the learned Senior Resident Magistrate Hon. Mr. F. Kyambia sitting in Bungoma Court in Civil Case No. 283 of 2006 delivered on 18/8/2011)
RULING
The Appellant’s application for a temporary injunction under Order 42 rule 6 (6) of the Civil Procedure Rules pending the hearing and determination of the appeal was heard on 31/10/2011 and ruling delivered on 12/3/2012 granting it. It had been served on the Respondent on 19/10/2011 but had not elicited any response. The explanation by the Respondent for not having responded was that the application was served on a new clerk in the firm of his advocates. The new clerk did not bring the application to the attention of the advocates and did not diarise it with the consequence that they were unaware of the matter and did not prepare a response. The Appellant swore a replying affidavit to say that the Respondent was properly served with the application and has no plausible explanation why he did not respond to it.
Clearly, the application was served on the office of J. W. Sichangi & Co. advocates who were on record for the Respondent. According to them, an administrative error prevented them from filing a response and attending the hearing. The result was that the application was heard and determined without their client being heard. The right to a hearing in any dispute is a cardinal one which should not be easily denied unless there is demonstrated intention to delay or obstruct justice. The Appellant has not alleged or shown that the re-opening of the application will occasion any prejudice, or that such prejudice may not be appropriately compensated by an award of costs.
I allow the application and set aside the ex-parte proceedings of 31/10/2011 and ruling of 12/3/2012. I allow the Respondent 7 days within which to file and serve a replying affidavit to the application dated 7/10/2011. The Appellant shall thereafter have 7 days to file and serve any supplementary affidavit. The parties shall then exchange written submissions in 14 days. Costs shall be borne by the Respondent who has been indulged.
Dated, signed and delivered at Bungoma this 10th day of October, 2012.
A.O. MUCHELULE
JUDGE