[2014] KEHC 4945 (KLR)
The court found that there was no proof of service of the summons dated 31st May 2013 on the respondent. Although a hearing notice was served and acknowledged by the petitioner's counsel, this did not amount to service of the summons itself. In the absence of such service, the court declined to make any orders on...
Source-derived case information.
- Citation
- [2014] KEHC 4945 (KLR)
- Parties
- Petitioner: K W H; Respondent: J H D
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 94 of 2006
- Procedural Posture
- Divorce Cause / Interlocutory Application for Dismissal for Want of Prosecution
- Outcome
- Application not determined on merits due to lack of service; directions given for proper service.
- Judges
- DN Musyoka
- Legal Topics
- Divorce Petition, Service of Process, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
K W H
Petitioner
J H D
Respondent
Procedural Posture
Divorce Cause / Interlocutory Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the petition should be dismissed for want of prosecution in the absence of proof of service of the summons.
- 2 Whether the court can make orders on the merits without evidence of service of the summons.
Ratio Decidendi
The court found that there was no proof of service of the summons dated 31st May 2013 on the respondent. Although a hearing notice was served and acknowledged by the petitioner's counsel, this did not amount to service of the summons itself. In the absence of such service, the court declined to make any orders on the merits of the application for dismissal for want of prosecution. The applicant was directed to serve the summons and thereafter obtain a hearing date.
Court Disposition
Application not determined on merits due to lack of service; directions given for proper service.
Orders
- The applicant shall serve the summons dated 31st May 2013 on the respondent.
- The applicant shall thereafter obtain a date for hearing at the registry.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Divorce Cause No. 94 Of 2006
K W H……………....….………….PETITIONER
VERSUS
J H D………………….,..……….RESPONDENT
RULING
The application dated 31st May 2013 seeks several orders, the principal one being the dismissal of the petition for want of prosecution.
There is filed an affidavit of service filed on 27th November 2013. It indicates that the petitioner was served on 8th November 2013 through her counsel, Messrs. Mwangi Wahome Co. Advocates. The said law firm embossed their stamp on the face of the hearing notice returned as proof of service, which notice is dated 8th November 2013. The return relates to service of a hearing notice but not of the summons itself. There is no proof whatsoever of service of the summons dated 31st May 2013 itself.
As there is no evidence of service of the summons I will not make any orders on its merits. The applicant shall serve the summons dated 31st May 2013 on the respondent and thereafter obtain a date for its hearing at the registry.
SIGNED DATED and DELIVERED in open court this 30th day of May 2014.
W. MUSYOKA
JUDGE