[2002] KEHC 781 (KLR)
The court held that all parties should be given an opportunity to be heard, and that the absence of grounds of objection or replying affidavit by the 5th defendant and others does not, at this stage, justify proceeding ex-parte. The relevant procedural rule is not mandatory, and the court retains discretion to allow...
Source-derived case information.
- Citation
- [2002] KEHC 781 (KLR)
- Parties
- Plaintiff: Hudson Enterprises Limited; Defendant: Kenya Cold Storage (Foods) Limited & 11 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1267 of 2001
- Procedural Posture
- Civil Case / Ruling on Adjournment Application
- Outcome
- adjourned
- Legal Topics
- Adjournment, Right to Be Heard, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hudson Enterprises Limited
Plaintiff
Kenya Cold Storage (Foods) Limited & 11 Others
Defendant
Procedural Posture
Civil Case / Ruling on Adjournment Application
Legal Issues
- 1 Whether the application should proceed ex-parte due to failure by the 5th defendant and others to file grounds of objection or replying affidavit.
- 2 Whether the 5th defendant and other defendants should be given an opportunity to be heard before the application proceeds.
Ratio Decidendi
The court held that all parties should be given an opportunity to be heard, and that the absence of grounds of objection or replying affidavit by the 5th defendant and others does not, at this stage, justify proceeding ex-parte. The relevant procedural rule is not mandatory, and the court retains discretion to allow parties to oppose applications even if they have not filed certain documents. Therefore, the application should not proceed ex-parte, and the defendants should be served and given a fresh hearing date.
Court Disposition
adjourned
Orders
- The matter is adjourned to a date to be fixed in court.
- The 5th defendant and other defendants to be served.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURTOF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURT
CIVIL CASE NO. 1267 of 2001
HUDSONENTERPRISES LIMTIED ………………………. PLAINTIFF
VERSUS
KENYA COLD STORAGE
(FOODS) LIMITED & 11 OTHERS ………………. DEFENDANTS
R U L I N G
I have carefully listened to, appreciated and analysed arguments put forward for and against adjournment application by respective counsel. In my considered view, it is necessary to give all parties opportunity of being heard.
I am aware that the 5th defendant, among others, have not filed grounds of objection or replying affidavit. However, that cannot work against the 5th defendant as order L Rule 16(3) is not couched in mandatory terms. When the 5th defendant seeks leave to oppose the application, I may or may not allow the application. That time has not reached.
It is therefore too early to say that the application ought to proceed ex-parte. The 5th defendant and other defendants should therefore be served. A fresh hearing date to be given on request. The matter is therefore adjourned to a date to be fixed today in court.
DATED and DELIVERED at NAIROBI this 22nd day of October, 2002. N.R.O. OMBIJA JUDGE