[2019] KEHC 91 (KLR)
The court found that the orders issued on 2nd December 2015, which restrained the interested party from closing door No. 2 on plot No. 175 Kawiru market, were made without the interested party being present or represented, and there was no evidence of service upon him. This amounted to condemning the interested...
Source-derived case information.
- Citation
- [2019] KEHC 91 (KLR)
- Parties
- Petitioner: Peter Muriithi Munoru; Objector: Harriet Karamana Gitonga; Applicant: Wilson Muthee
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 268 of 2012
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- application allowed
- Legal Topics
- Right to Be Heard, Revocation of Grant, Injunctive Orders, Service of Process
- 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
Peter Muriithi Munoru
Petitioner
Harriet Karamana Gitonga
Objector
Wilson Muthee
Applicant
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the orders issued on 2nd December 2015 restraining the interested party from closing door No. 2 were made without affording him a hearing.
- 2 Whether failure to serve the interested party with the application and making orders against him amounted to a violation of the right to be heard.
- 3 Whether the orders should be set aside for being irregular and made in breach of natural justice.
Ratio Decidendi
The court found that the orders issued on 2nd December 2015, which restrained the interested party from closing door No. 2 on plot No. 175 Kawiru market, were made without the interested party being present or represented, and there was no evidence of service upon him. This amounted to condemning the interested party unheard, in violation of the fundamental right to a fair hearing. The court emphasized that no orders should be made against a party without affording them an opportunity to be heard. Consequently, the application to set aside the orders was merited and allowed, restoring the interested party's right to participate in proceedings affecting his interests.
Court Disposition
application allowed
Orders
- The application dated 13th February 2016 is allowed as prayed.
- Orders made on 2nd December 2015 restraining the interested party from closing door No. 2 on plot No. 175 Kawiru market are set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 268 OF 2012
In the Matter of the Estate of Phylis Wairimu Munoru (Deceased)
PETER MURIITHI MUNORU.........................PETITIONER
VERSUS
HARRIET KARAMANA GITONGA..................OBJECTOR
WILSON MUTHEE.......INTRESTED PARTY/APPLICANT
JUDGMENT
[1] Before me is Summons expressed to be brought pursuant to Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, in which the interested party is inter alia asking the court to set aside/vacate its orders made on 2nd December 2015. Those orders restrained the interested party from closing door No. 2 in plot No. 175 Kawiru market for use by the applicant.
[2] The major gravamen is that the orders of 2nd December 2015 are adverse to the applicant as were issued without hearing him. As such, he was condemned unheard. He stated that the two parties herein colluded to mislead the court in issuing most undeserving orders.
[3] When the matter came up for hearing on 21st February 2017, the court directed that the application be canvassed by way of written submissions. Briefly it was submitted for the interested party that the application was never served on him yet he was the main target of the application. He reinforced the fact that he was not part of the proceedings concerning the said summons yet he was directly named in the order. He continued to state that the consent that was entered into was by advocate for the objector and advocate for the petitioner. According to the interested party that was day-light miscarriage of justice, an abuse of court process and an irregularity. He argued that the Deputy Registrar ought to have ordered that the application be served on him to allow him to be heard. For those reasons, he beseeched the court to vacate the order dated 2nd December 2015.
[4] On the other hand it was submitted for the objector that the injunctive orders were made for the sole purpose of preserving the estate in light of the fact that the objector had already filed summons seeking revocation of grant issued to the petitioner but not yet confirmed.
ANALYSIS AND DETERMINATION
[5] I have carefully considered this application and the rival pleadings by the parties. A careful perusal of the record shows that when the matter came up for mention on 19th October 2015, there was no appearance by the parties whereupon the court scheduled a further mention date on 2nd December 2015. On the appointed date, Mr. Rimita for objector intimated to court that the parties had agreed by consent to have door No. 2 on plot No. 175 Kawiria market opened for use by the objector. The court subsequently inter alia ordered that the interested party be restrained from preventing use of door No. 2 as prayed by the objector. It is evident that the interested party was not present in court and neither was he represented when the said order was made. Similarly, there is nothing on record to show that he was served. The interested party was clearly condemned unheard.
[6] Accordingly, the application dated 13th February 2016 is merited and is allowed as prayed. This being a succession matter there will be no order as to costs.
Dated signed and delivered in open court this 24th January 2019
F. GIKONYO
JUDGE
In presence of
M/s Munga for Rimita
F. GIKONYO
JUDGE