[2008] KEHC 2717 (KLR)
The court found that although there were two applications on the file, one had been withdrawn, and the only remaining application was the Notice of Motion dated 3rd April 2008. The replying affidavit by Mr. Mouko, though not expressly stating which application it opposed, could only logically relate to the...
Source-derived case information.
- Citation
- [2008] KEHC 2717 (KLR)
- Parties
- Appellant: Fred Lwande t/a Markart; Respondent: Kenya Industrial Estates Ltd
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 8 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Opposition to Application
- Outcome
- Application is opposed; respondent allowed to make submissions in opposition.
- Judges
- CA Ombija
- Legal Topics
- Notice of Motion, Replying Affidavit, Grounds of Opposition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Lwande t/a Markart
Appellant
Kenya Industrial Estates Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Opposition to Application
Legal Issues
- 1 Whether the replying affidavit filed by the respondent is properly on record and relates to the application under consideration.
- 2 Whether the application by the applicant should proceed ex-parte due to alleged lack of opposition.
Ratio Decidendi
The court found that although there were two applications on the file, one had been withdrawn, and the only remaining application was the Notice of Motion dated 3rd April 2008. The replying affidavit by Mr. Mouko, though not expressly stating which application it opposed, could only logically relate to the application still before the court. Therefore, the application was deemed opposed, and the respondent was allowed to make submissions in opposition.
Court Disposition
Application is opposed; respondent allowed to make submissions in opposition.
Orders
- Mr. Mouko is allowed to make submissions in opposition to the application dated 3rd April 2008.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Misc Civil Appli 8 of 2008
FRED LWANDE T/A MARKART..……….……APPELLANT
VERSUS
KENYA INDUSTRIAL ESTATES LTD..….. RESPONDENT
R U L I N G
Mr. Mouko, advocate for the respondent in the application by way of Notice of Motion, dated 3rd April 2008, sought to rely on a replying affidavit sworn by himself on 29th April 2008.
It happens that two applications are on the court file in respect of the same subject matter. One, is by way of ex-parte Chamber Summons dated 22nd April 2008. Yet another by way of Notice of Motion dated 3rd April 2008.
The application by way of ex-parte Chamber Summons was withdrawn on 20th May 2008.
The application which remained for hearing is one by way of Notice of Motion dated 3rd April 2008. When Mr. Mouko rose to address the court, Mr. Okuto, counsel for the applicant, objected. He submitted that there is no grounds or replying affidavit in opposition to the application. He sought leave to proceed ex-parte therefor.
Mr. Mouko’s response was that there was an affidavit by himself sworn on the 29th day of April 2008 in opposition. The situation is compounded by the fact that the affidavit does not say to which application it relates.
I have agonized over the matter. I have carefully perused the court file and find as a fact that there are grounds of opposition to the application dated 22nd April 2008 which is the one withdrawn. Accordingly, the only logical inference is that the replying affidavit of James Gekonge Mouko relates to the application dated 3rd April 2008 which is under consideration.
In my view, the application is thus opposed.
I allow Mr. Mouko to make submissions (if any) in opposition to the application herein therefore.
DATED and delivered at Malindi this 23rd day of May 2008.
N. R. O. Ombija
JUDGE