[2015] KEHC 918 (KLR)
The court found that the applicant was not served with the application dated 31/12/2014, a fact not denied by the respondent. In the interest of justice and in accordance with the applicant's constitutional right to be heard, the court set aside the orders made on 20/5/2015 and all consequential orders. The...
Source-derived case information.
- Citation
- [2015] KEHC 918 (KLR)
- Parties
- Applicant: Joseph Wasike Sumbule alias Wasike Sumbule; Respondent: Charles Khaemba Wafula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 135 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- SN Mukunya
- Legal Topics
- Setting Aside Orders, Service of Process, Replying Affidavit, Land Sale Dispute
- 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
Joseph Wasike Sumbule alias Wasike Sumbule
Applicant
Charles Khaemba Wafula
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the orders granted to the respondent on 20/5/2015 should be set aside due to lack of service on the applicant.
- 2 Whether the applicant should be granted leave to file a replying affidavit to the respondent's application.
Ratio Decidendi
The court found that the applicant was not served with the application dated 31/12/2014, a fact not denied by the respondent. In the interest of justice and in accordance with the applicant's constitutional right to be heard, the court set aside the orders made on 20/5/2015 and all consequential orders. The applicant was granted leave to file a replying affidavit within 30 days, and the matter is to be heard on its merits. Each party is to bear its own costs.
Court Disposition
application allowed
Orders
- The orders made on 20/5/2015 are set aside.
- All consequential orders arising from the order of 20/5/2015 are set aside.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. APPLICATION CASE NO.135 OF 2014
JOSEPH WASIKE SUMBULE alias WASIKE SUMBULE………………..APPLICANT
VERSUS
CHARLES KHAEMBA WAFULA……………………………….……………RESPONDENT
RULING
[1] The applicant prays that the orders granted to respondent on 20/5/2015 from his application dated 31/12/2014 be set aside. He equally prays that he be given time to file a replying affidavit to that application so that proper orders are given upon hearing both sides. It is argued that the property quoted on the first application 1459 is not the same as the one quoted in the extracted order as 1469.
[2] The respondent opposed the application he says that the same is not honest. That he sold 3 acres of land to the applicant and he wanted the land surveyed so that he can have his 2 acres and the applicant his three acres. He relied on his application paragraph 5.
[3] I have perused the application and I note that the Complaint is that the applicant was not served with the application dated 31/12/2014. The respondent has not denied that fact. In the interest of justice, the applicant should be afforded a chance to reply to that application. It is his Constitutional right.
[4] I therefore order that the orders made on 20/5/2015 are set aside. All other consequential orders made arising of that order are also set aside. The applicant is allowed to file a replying affidavit within 30 days from this ruling and the application shall be fixed for hearing on merits.
Each party shall bear its own costs.
Orders accordingly.
DATED at BUNGOMA this 2nd day of December, 2015
S.N. MUKUNYA
JUDGE