[2011] KEHC 470 (KLR)
The court held that it cannot grant the orders sought in the citation because there is no affidavit of service filed to demonstrate that the respondent was served. Service of process is a fundamental requirement before any adverse orders can be made against a party. The applicant must either serve the respondent or...
Source-derived case information.
- Citation
- [2011] KEHC 470 (KLR)
- Parties
- Applicant: Joseph Nyagah; Respondent: Simon Muchira Mbogo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 22 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- orders not granted; applicant to serve respondent or file affidavit of service
- Legal Topics
- Citation Procedure, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nyagah
Applicant
Simon Muchira Mbogo
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the orders sought in the citation can be granted without proof of service on the respondent.
- 2 Whether an affidavit of service is necessary before granting orders in a citation.
Ratio Decidendi
The court held that it cannot grant the orders sought in the citation because there is no affidavit of service filed to demonstrate that the respondent was served. Service of process is a fundamental requirement before any adverse orders can be made against a party. The applicant must either serve the respondent or file an affidavit of service to satisfy the court that due process has been followed. Without such proof, the application cannot proceed.
Court Disposition
orders not granted; applicant to serve respondent or file affidavit of service
Orders
- The applicant is directed to serve the respondent or file an affidavit of service.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. CIVIL APPLICATION NO. 22 OF 2009
JOSEPH NYAGAH...............................................APPLICANT
VERSUS
SIMON MUCHIRA MBOGO.............................................RESPONDENT
R U L I N G
A citation was filed on 6/10/2009 in respect of the estate of the late Samuel Mbogo. The same was filed against Simon Muchira Mbogo. The orders sought can not be granted as there is no affidavit of service filed as relates to the citation.
The Applicant is called upon to urgently serve the citee (Simon Muchira Mbogo) or avail affidavit of service.
DELIVERED, SIGNED AND DATED AT EMBU THIS 17th DAY OF NOVEMBER 2011.
H.I. ONG’UDI
JUDGE