[2018] KEKC 39 (KLR)
The court found that the orders issued on 4/6/2018 were made without evidence that all parties to the dispute were notified and given an opportunity to be heard. This omission violated the right to a fair hearing and the principles of natural justice. Consequently, the court set aside the proceedings of 4/6/2018 and...
Source-derived case information.
- Citation
- [2018] KEKC 39 (KLR)
- Parties
- Applicant: Hamisi Juma Khamis; Respondent: Zubeda Mohamed Swaleh
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 235 of 2016
- Procedural Posture
- Succession Cause / Ruling on Setting Aside Ex Parte Orders and Directions for Hearing
- Outcome
- Proceedings of 4/6/2018 set aside; matter remitted for hearing with notice to all parties.
- Judges
- CA Otieno
- Legal Topics
- Succession Estate Administration, Right to Be Heard, Ex Parte Orders, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamisi Juma Khamis
Applicant
Zubeda Mohamed Swaleh
Respondent
Procedural Posture
Succession Cause / Ruling on Setting Aside Ex Parte Orders and Directions for Hearing
Legal Issues
- 1 Whether the orders issued on 4/6/2018 were made without notifying all parties to the dispute.
- 2 Whether the proceedings of 4/6/2018 should be set aside for lack of notice and hearing.
- 3 Whether the respondent should be served with notice to respond to claims of eviction and rent accounting.
Ratio Decidendi
The court found that the orders issued on 4/6/2018 were made without evidence that all parties to the dispute were notified and given an opportunity to be heard. This omission violated the right to a fair hearing and the principles of natural justice. Consequently, the court set aside the proceedings of 4/6/2018 and directed that notice be served upon all parties to enable a proper determination of the issues, including the potential eviction of the respondent and the rendering of accounts for rent allegedly received.
Court Disposition
Proceedings of 4/6/2018 set aside; matter remitted for hearing with notice to all parties.
Orders
- The proceedings of 4/6/2018 are set aside.
- The trial court is directed to serve notice upon all parties to the dispute.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE KADHI’S COURT OF KENYA
AT MOMBASA
SUCCESSION CAUSE NO. 235 OF 2016
IN THE MATTER OF THE ESTATE: JUMA HAMISI KOMBO (DECEASED)
HAMISI JUMA KHAMIS……………………………………...PETITIONER
VS
ZUBEDA MOHAMED SWALEH…………………………..RESPONDENT
R U L I N G
1. This matter has been placed before court following Orders made in HCCA No. 24 of 2018 pursuant to the provisions of Article 165 (6).
2. Having read the file and in particular the Orders issued on 4/6/2018.
I find that there is no evidence that the other parties in the dispute were notified and given a chance to be heard before the orders were issued.
3. To that extent and reason, the proceedings of 4/6/2018 are set aside and the trial court is directed to serve a notice upon on the parties to the dispute to enable it determine the need to have one ZUBEDA MOHAMED SWALEH evicted and for her to render accounts of any rent allegedly received on account of the premises in dispute.
Dated and delivered at Mombasa this 9th day of July 2018.
P.J.O. OTIENO
JUDGE