[2014] KEHC 1769 (KLR)
The court found that although the Attorney General's office was served with the hearing notice, the District Land Registrar, Nyandarua, was not personally served. Since the Attorney General had not entered appearance to act for the District Land Registrar, service upon the Attorney General alone was insufficient....
Source-derived case information.
- Citation
- [2014] KEHC 1769 (KLR)
- Parties
- Applicant: Joseph Kiragu Mbatia (suing on behalf of the estate of Ann Waithira Mbatia (deceased)); Respondent: District Land Registrar (Nyandarua)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 174 of 2012
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Service and Hearing Notice
- Outcome
- Application not determined on merits; fresh hearing date to be taken and proper service to be effected.
- Judges
- L Waithaka
- Legal Topics
- Service of Process, Restrictions on Land, Natural Justice, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kiragu Mbatia (suing on behalf of the estate of Ann Waithira Mbatia (deceased))
Applicant
District Land Registrar (Nyandarua)
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Service and Hearing Notice
Legal Issues
- 1 Whether the hearing notice for the application was properly served upon the District Land Registrar, Nyandarua.
- 2 Whether the principle of natural justice requiring a party to be heard was observed in the service of the hearing notice.
Ratio Decidendi
The court found that although the Attorney General's office was served with the hearing notice, the District Land Registrar, Nyandarua, was not personally served. Since the Attorney General had not entered appearance to act for the District Land Registrar, service upon the Attorney General alone was insufficient. The court emphasized the fundamental principle of natural justice that no party should be condemned unheard. Consequently, the court held that proper service had not been effected and, in the interests of justice, ordered that a fresh hearing date be taken and the hearing notice be served directly upon the District Land Registrar, Nyandarua.
Court Disposition
Application not determined on merits; fresh hearing date to be taken and proper service to be effected.
Orders
- A new hearing date for the application shall be taken.
- The hearing notice shall be served upon the District Land Registrar, Nyandarua, in person.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC. APPLICATION NO. 174 OF 2012
IN THE MATTER OF THE LAND REGISTRATION ACT, NO 3 OF 2012, LAWS OF KENYA
AND
IN THE MATTER OF SECTION 78 OF THE LAND REGISTRATION ACT, NO 3 OF 2012, LAWS OF KENYA
BETWEEN
JOSEPH KIRAGU MBATIA
(suing on behalf of the estate of Ann Waithira Mbatia (deceased))……………APPLICANT
AND
DISTRICT LAND REGISTRAR (NYANDARUA)……………………………..RESPONDENT
RULING
1. By an application by way of Notice of Motion brought under Order 51 of the Civil Procedure Rules, Section 78 of the Land Registration Act, 2012and Section 3A of the Civil Procedure Act dated 12th June, 2012, the applicant moved the court seeking the following orders:
a)That the Court be pleased to order the District Land Registrar (Nyandarua) to remove the restriction over the property known as L.R. No. Nyandarua/Silanga/468 (''the suit property'')
b) That the costs of this application be provided for.
2. The application is premised on the grounds on its face and supported by the affidavit of the applicant, which can be summarized as follows: that there exists a restriction lodged indefinitely on the suit property which belongs to the late Ann Waithira Mbatia lodged irregularly and unlawfully. This restriction has hampered the administration of her estate.
3. An affidavit of service was filed on 15th May, 2013by George Okemwa, a process server of this honourable court, that on 21st September, 2012 he served upon the District Land Registrar Nyandarua west, one Mr Githaiya a notice of motion application dated 12th June, 2012who accepted service of the same by retaining his copy but declined to sign it stating that the restriction was placed by the District Criminal investigating officer.
4. Despite service the respondent did not enter appearance or respond to the application.
5. A hearing date for the application was taken in the registry on 17th January, 2014 for hearing of the application on 20th May 2014. On 9th May, 2014 Nicholas Openda a process server, served the hearing notice upon the office of the Attorney General's, Nakuru who acknowledged receipt.
6. Whereas, a hearing notice was served upon the office of the Attorney General, Nakuru, the Attorney General had not entered appearance to act for the District Land Registrar, Nyandarua. The hearing notice should also have been served upon the District Land Registrar, Nyandarua in person as it is a fundamental principle of natural justice that one must not be condemned unheard. For that reason, I find that the hearing notice was not properly served.
7. In the interests of justice, I order that another hearing date be taken for hearing of the application and the hearing notice be served upon the District Land Registrar Nyandarua.
Dated and delivered at Nakuru this 3rd day of October 2014
L N WAITHAKA
JUDGE
PRESENT
Mr Osoro for the Applicant
N/A for the respondent
Emmanuel Maelo : Court Assistant
L N WAITHAKA
JUDGE