[2013] KEHC 3526 (KLR)
The court found that the application to declare the suit abated and to set aside interim orders was not properly served on the plaintiff's advocates on record. There was no notice of change of advocates filed, and service was effected on a law firm not on record. As proper service is a fundamental requirement for...
Source-derived case information.
- Citation
- [2013] KEHC 3526 (KLR)
- Parties
- Plaintiff: Hezekiah Muniu Karanja; Defendant: Flora Hezekiah Karanja; Defendant: Hannah Hezekiah Karanja; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 602 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Declare Suit Abated and Set Aside Interim Orders
- Outcome
- application dismissed
- Judges
- LN Gacheru
- Legal Topics
- Abatement of Suit, Service of Process, Interim Orders, Notice of Change of Advocates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hezekiah Muniu Karanja
Plaintiff
Flora Hezekiah Karanja
Defendant
Hannah Hezekiah Karanja
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application to Declare Suit Abated and Set Aside Interim Orders
Legal Issues
- 1 Whether the suit has abated due to the death of the plaintiff and failure to substitute a legal representative within one year.
- 2 Whether the application to declare the suit abated and set aside interim orders was properly served on the plaintiff's advocates.
- 3 Whether interim orders should be set aside for want of prosecution or abatement.
Ratio Decidendi
The court found that the application to declare the suit abated and to set aside interim orders was not properly served on the plaintiff's advocates on record. There was no notice of change of advocates filed, and service was effected on a law firm not on record. As proper service is a fundamental requirement for the validity of court proceedings, the court held that it would not be proper to allow the application. Consequently, the application dated 24/9/2012 was dismissed for improper service.
Court Disposition
application dismissed
Orders
- The application dated 24/9/2012 is dismissed for improper service.
- Costs in the cause.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Civil Case 602 of 2008 [if gte mso 9]><xml>
800x600
</xml><![endif]
HEZEKIAH MUNIU KARANJA ...................................................PLAINTIFF
-VERSUS-
FLORA HEZEKIAH KARANJA ..............................................1ST DEFENDANT
HANNAH HEZEKIAH KARANJA............................................2ND DEFENDANT
THE ATTORNEY GENERAL...................................................3RD DEFENDANT
RULING.
1. By a Notice of Motion dated 24/9/2012 , the Applicant herein Flora Hezekiah Karanja has sought for Orders that:- (a)The Suit herein has abated by virtue of the fact that the Plaintiff herein Hezekiah Munio Karanja died on 23rd June, 2011 as per the attached Death Certificate marked FHK 1. (b)That the Plaintiff’s Application dated 21/6/2011 be stuck out and the Interim Orders issued on 13/7/2011 by Hon. Justice Mbogholi Msagha be set aside and each party to bear their own cost. 2. The Application was suported by the Affidavit of Flora Hezekiah Karanja who avered that the Plaintiff herein died on 23/6/2011 and it is now more than one year since the Plaintiff died and the deceased plaintiff’s representative have not applied to be a party in the suit. Plaintiff had been issued with Interim Orders on 13/7/2011 by Hon. Judge Mbogholi Msagha restraining the 1st and 2nd Defendants from dealing with the LR NO. 76/504 . Plaintiff further deponed that on the interest of Justice , the suit has abaited and the said Order should be set aside. 3. The Application herein was urgued exparte because it was alleged that the Respondents Advocates were served with the hearing notice but they failed to attend Court. 4. I have perused the Affidavit of Service dated 19/2/2013 and the Hearing Notice attached therein. I have noted that the Process Server one Kennedy M.Nyamweyaserved the Hearing Notice to Ombachi Moriasi & Co. Advocates . The Hearing Notice attached also bears the receipt stamp from the Law firm Ombachi Moriasi & Co. Advocates dated 18/2/2013.
I have also perused the pleadings and I have noted the Plaintiff herein was represented in the first instant and subsequent proceedings by the Law firm of A . Kamau Chege & Co. Advocates of Uniafric House.
I have not seen a Notice of Change of Advocates. I do not know why the Applicants Advocates chose to serve the Hearing Notice to Ombachi Moriasi & Co. Advocates as there is no Notice of Change of Advocates filed in Court. The Application was therefore not properly served.
For the above reason, I find that it would not be proper to allow the instant application . Application dated 24/9/2012 is hereby dismissed as the same was not properly served.
·Costs in the cause.
Dated , Signed and delivered this 6th May, 2013.
L. N. GACHERU
JUDGE
6/5/2013
In the Presence of:-
………………………………………For the Plaintiff/Applicant
……………………………………..For the Defendant/Respondent
……………………………………. Court Clerk
L. N. GACHERU
JUDGE
6/5/2013
6/5/2013
L. N Gacheru Judge
Anne : Court Clerk
Kihungu holding brief Keshelo for the Defendants/ Applicants.
L. N GACHERU
JUDGE
6/5/2013
Court.
Ruling Read in open Court .
L N GACHERU
JUDGE
6/5/2013
`
[if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Calibri","sans-serif";} </style> <![endif]