[2020] KEHC 199 (KLR)
The court found that the applicant was not notified of the application that led to the ex parte orders and that there were serious issues regarding the transfer and registration of the suit land. The absence of opposition from the respondent and the potential lack of jurisdiction by the lower court to order...
Source-derived case information.
- Citation
- [2020] KEHC 199 (KLR)
- Parties
- Applicant: Diana Rachel Kavedza; Respondent: Andrew Kakai Sabiri
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 124 of 1998
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- Application allowed; ex parte orders set aside; substantive application to be heard on merits.
- Judges
- HK Chemitei
- Legal Topics
- Setting Aside Ex Parte Orders, Jurisdiction of Court, Notification of Parties, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diana Rachel Kavedza
Applicant
Andrew Kakai Sabiri
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders made on 7th October 1997 should be set aside.
- 2 Whether the applicant was properly notified of the application leading to the ex parte orders.
- 3 Whether the lower court had jurisdiction to order cancellation of the title to land parcel number 424 Kamukuywa scheme.
Ratio Decidendi
The court found that the applicant was not notified of the application that led to the ex parte orders and that there were serious issues regarding the transfer and registration of the suit land. The absence of opposition from the respondent and the potential lack of jurisdiction by the lower court to order cancellation of title further justified setting aside the ex parte orders. The court allowed the application to set aside the orders and directed that the substantive application be set down for hearing, ensuring that all parties have an opportunity to be heard.
Court Disposition
Application allowed; ex parte orders set aside; substantive application to be heard on merits.
Orders
- The application dated 29th July 2020 is allowed.
- The ex parte orders made on 7th October 1997 are set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO.124 OF 1998
IN THE MATTER OF THE ESTATE OF THE LATE
PETER SABIRI MABAKHE (DECEASED)
DIANA RACHEL KAVEDZA.................................APPLICANT
VERSES
ANDREW KAKAI SABIRI..................................RESPONDENT
RULING
1. By her application dated 29th July 2020 the applicant prays that the Exparte orders made on 7th October 1997 which ordered land parcel number 424 Kamukuywa scheme to be registered in the name of the respondent be set aside and the application dated 18th September 1997 be set down for hearing.
2. The said application was not opposed since despite being served as per the affidavit of service dated 17th October 2020, the respondent did not appear before this court nor his representative.
3. The application is meritorious for the simple reason that there are weighty issues including the transfer of the suit land which was registered in the name of the late Beatrice Ngaira. According to the applicant she was never notified of the date of the said application and that in any case the lower court did not have the requisite jurisdiction to have ordered the cancellation of the title.
4. In the premises, the application dated 29th July 2020 is allowed, the application dated 18th September 1997 be and is hereby set down for hearing. Parties shall proceed to take an appropriate date at the registry.
5. Costs shall await the outcome of the said application.
Delivered, Signed and Dated at Kitale this 11th day of December 2020.
H. K. CHEMITEI
JUDGE