[2010] KEHC 2592 (KLR)
The court determined that, given the complexity and involvement of the facts in the case, justice would best be served by hearing the matter through oral (viva voce) evidence rather than solely on affidavit evidence. The absence of the defendant's participation, despite being served, was noted but did not preclude...
Source-derived case information.
- Citation
- [2010] KEHC 2592 (KLR)
- Parties
- Plaintiff: Julius Ndungu Kaberere; Defendant: Charles Mungai Ngure
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 513 of 2009
- Procedural Posture
- Civil Case / Ruling on Directions for Hearing of Originating Summons
- Outcome
- Application for directions granted in part; matter to proceed by viva voce evidence.
- Judges
- CM Njagi
- Legal Topics
- Originating Summons, Directions for Hearing, Affidavit Evidence, Viva Voce Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Ndungu Kaberere
Plaintiff
Charles Mungai Ngure
Defendant
Procedural Posture
Civil Case / Ruling on Directions for Hearing of Originating Summons
Legal Issues
- 1 Whether the court should give directions as to the hearing of the Originating Summons.
- 2 Whether the matter should proceed by way of affidavit evidence or oral (viva voce) evidence.
Ratio Decidendi
The court determined that, given the complexity and involvement of the facts in the case, justice would best be served by hearing the matter through oral (viva voce) evidence rather than solely on affidavit evidence. The absence of the defendant's participation, despite being served, was noted but did not preclude the need for a thorough examination of the facts. The court exercised its discretion under Order XXXVI Rule 8A of the Civil Procedure Act to direct that the application be heard by viva voce evidence, and further directed that the hearing notice be served on the defendant by a different process server to ensure proper notice and opportunity to attend.
Court Disposition
Application for directions granted in part; matter to proceed by viva voce evidence.
Orders
- The application shall be heard by viva voce evidence.
- The hearing notice shall be served upon the Respondent by a different court process server in sufficient time to enable attendance.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANICOMMERCIAL COURTS)
Civil Case 513 of 2009
JULIUS NDUNGU KABERERE .................................................PLAINTIFF
VERSUS
CHARLES MUNGAI NGURE .................................................DEFENDANT
R U L I N G
By this application, the plaintiff seeks an order that this Honourable Court be pleased to give directions as to the hearing of the Originating Summons dated 20th July, 2009. He also prays that this matter do proceed by way of affidavit evidence. The application is made by a Chamber Summons taken out under Order XXXVI Rule 8Aof the Civil Procedure Act and all other enabling provisions of the law.
The Defendant herein was served with copies of the certificate of urgency, the Chamber Summons, the supporting affidavit and Originating Summons on 28th July, 2009 but did not enter appearance. Given the love that some Kenyans are reputed to have for both land and money, it is very strange that the Respondent herein did not enter appearance to defend a suit in which he stood either to get back his land or the monetary value in respect thereof, which run into millions of shillings. Yet, at one point he had refused to accept the balance of the purchase price stating that the sale agreement had been terminated upon expiry of the completion period.
In a nutshell, the facts of this case are very involving, and in the interests of justice I think that it would be best if the matter was subjected to oral evidence in respect of which the Applicant would be subjected to some questions, even if that might be by the court alone.
By reason of the above, I direct that this application be heard by viva voce evidence. For what it is worth, I also direct that the hearing notice be served upon the Respondent preferably by a different court process server, in sufficient time to enable him attend court if he is so minded.
Orders accordingly.
DATED and DELIVERED at NAIROBI this 22nd day of April, 2010.
L. NJAGI
JUDGE