[2011] KEHC 875 (KLR)
The court determined that it could not proceed to judgment because there was no evidence that the respondents had been served with the necessary hearing and mention notices. This failure to serve deprived the respondents of their right to be heard, a fundamental principle of natural justice and fair trial under the...
Source-derived case information.
- Citation
- [2011] KEHC 875 (KLR)
- Parties
- Applicant: Dr. Jack Kaguu Githae; Respondent: The Attorney General & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 1300 of 2007
- Procedural Posture
- Judicial Review / Ruling on Transfer and Service Irregularity
- Outcome
- Petition transferred to the High Court at Nyeri; no judgment delivered; parties to be properly served.
- Judges
- DK Musinga
- Legal Topics
- Service of Process, Transfer of Suit, Right to Be Heard, Judicial Bias
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Jack Kaguu Githae
Applicant
The Attorney General & Another
Respondent
Procedural Posture
Judicial Review / Ruling on Transfer and Service Irregularity
Legal Issues
- 1 Whether the respondents were properly served with hearing and mention notices before the hearing and judgment dates.
- 2 Whether the High Court at Nairobi is the proper forum for hearing the petition given the acts complained of occurred in Nyeri.
- 3 Whether the court can proceed to judgment without giving the respondents an opportunity to be heard.
Ratio Decidendi
The court determined that it could not proceed to judgment because there was no evidence that the respondents had been served with the necessary hearing and mention notices. This failure to serve deprived the respondents of their right to be heard, a fundamental principle of natural justice and fair trial under the Constitution. Additionally, since the acts giving rise to the petition occurred in Nyeri, the High Court at Nyeri was the appropriate forum for the hearing and determination of the matter. The court therefore ordered the transfer of the petition to the High Court at Nyeri and declined to deliver judgment until the respondents had been properly served and given an opportunity to...
Court Disposition
Petition transferred to the High Court at Nyeri; no judgment delivered; parties to be properly served.
Orders
- The petition is transferred to the High Court of Kenya at Nyeri for hearing and disposal.
- Respondents to be served with proper hearing and mention notices before further proceedings.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW NO. 1300 OF 2007
DR. JACK KAGUU GITHAE …….................………… PLAINTIFF/APPLICANT
VERSUS
THE ATTORNEY GENERAL
& ANOTHER ………………………….…….. DEFENDANTS/RESPONDENTS
RULING
On 7th October, 2010 this matter was mentioned before the Hon. Lady Justice Gacheche in the presence of Mr. Kiplagat who was holding brief for Mr. Gikaria for the petitioner and Miss Natome for the respondent. The court fixed the petition for hearing on 20th December, 2010.
Come that day, a Mr. Omondi appearing for the petitioner went before the same judge. There was no appearance for the respondent. The judge disqualified herself from hearing the petition, stating that she was well known to the petitioner. She directed that the file be placed before this court on 24th January, 2011 for directions. The court further directed that a mention notice be served upon the respondent.
On 24th January, 2011, Mr. Omondi advocate appeared for the petitioner but no counsel attended court on behalf of the respondents. The court record does not contain any affidavit of service of a mention notice upon the Attorney General’s office. The court directed that the petition be heard on 24th March, 2011 and the Attorney General was ordered to file his submissions within 30 days from the said date. The petitioner’s counsel was also directed to serve a hearing notice.
On 24th March, 2011 Mr. Omondi was before this court again. No one showed up for the respondents and neither had any submissions been filed by the respondents. On the other hand, the petitioner had filed his submissions. Mr. Omondi told the court that he was relying entirely on his submissions and asked the court to deliver a judgment on the basis thereof.
Inadvertently, the court, without having ascertained whether the respondent had been served with a hearing notice, fixed the date for judgment as 19th May, 2011.
In the course of perusing the file for purposes of crafting a judgment, it was realized that the respondent had not been served with a hearing notice in respect of the mention of 24th January, 2011 and the hearing of 24th March, 2011.
In the circumstances, the court cannot craft a judgment without giving the respondents an opportunity to be heard. The respondents had filed grounds of opposition and list of authorities. That was done on 28th July, 2008. That is a clear indication that the respondents intend to defend this petition.
Secondly, the acts that gave rise to this petition were done at Nyeri. The Petitioner stated, inter alia, that on 6th February, 2006 the OCS, Nyeri, ordered his arrest and in the process of effecting arrest, the arresting officers seriously assaulted him. Thereafter he was arraigned in Nyeri Chief Magistrate’s court on a charge of belonging to an illegal sect.
That being the case, this petition ought to have been filed in the High Court of Kenya at Nyeri. It is ordered that this petition be transferred to that court for hearing and disposal.
DATED AND DELIVERED AT NAIROBI ON THIS 26TH DAY OF SEPTEMBER, 2011.
D. MUSINGA
JUDGE
In the presence of:
Nazi – Court Clerk
Miss Odera for Mr. Gakaria for the Applicant
Mr. Kipkogei for the Respondent