[2009] KEHC 3210 (KLR)
The court found that the motion for sale of land to satisfy costs was not properly served on the defendant or her legal representative, as the defendant had died prior to service and the affidavit of service did not demonstrate service on the appropriate party. The applicant's advocate was not candid regarding...
Source-derived case information.
- Citation
- [2009] KEHC 3210 (KLR)
- Parties
- Plaintiff: Kinyua Muri; Defendant: Rose Wangui Ngigie
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 50 of 1972
- Procedural Posture
- Civil Case / Ruling on Ex Parte Application for Sale of Land to Satisfy Costs
- Outcome
- Ex parte proceedings set aside; motion stood over generally; directions for proper service and hearing date.
- Legal Topics
- Execution of Judgment, Service of Process, Sale of Land in Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kinyua Muri
Plaintiff
Rose Wangui Ngigie
Defendant
Procedural Posture
Civil Case / Ruling on Ex Parte Application for Sale of Land to Satisfy Costs
Legal Issues
- 1 Whether the motion for sale of land to satisfy costs was properly served on the defendant or her legal representative.
- 2 Whether ex parte proceedings could be sustained in light of the defendant's death and lack of service.
Ratio Decidendi
The court found that the motion for sale of land to satisfy costs was not properly served on the defendant or her legal representative, as the defendant had died prior to service and the affidavit of service did not demonstrate service on the appropriate party. The applicant's advocate was not candid regarding service. In the absence of proper service, the court could not make a conclusive finding on the motion and set aside the ex parte proceedings. The motion was marked as stood over generally, with directions for proper service and a hearing date to be fixed by the registry.
Court Disposition
Ex parte proceedings set aside; motion stood over generally; directions for proper service and hearing date.
Orders
- The proceedings taken ex parte are set aside.
- The motion is marked as stood over generally.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Case 50 of 1972
KINYUA MURI…………………...........………..PLAINTIFF
VERSUS
ROSE WANGUI NGIGIE………….……… DEFENDANT
RULING
Kinyua Muri, the Plaintiff herein, took out the motion dated 23rd March 2009 in which he applied for an order to direct the parcel of land known as Githi/Kirerema/998 in the names of Rose Wangui Ngige, the defendant herein, to be sold and the proceeds to be used to satisfy costs awarded. The Applicant applied for the sale to be advertised in the Daily Nation and for the sale to be conducted by M/S Hippo General Merchants. The motion is taken out pursuant to the provisions of Order XXI rules 59, 60, 61 and 62 of the Civil Procedure Rules. The application is supported by the affidavit of Charles Muchemi Karweru sworn on 30th March 2009. There is evidence that the motion was served but no reply has been filed, consequently the application proceeded for hearing exparte under Order L rule 16 (3) of the Civil Procedure Rules.
The record shows that one John Githinji Kiiru, wrote to the Deputy Registrar of this Court on 26th May 2009, in which he informed the Court that the Defendant had died on 3rd December 2008. The letter had nine (9) copies of the death certificate annexed to it. The letter is copied to the firm of Karweru & Co. Advocates. It would appear from the affidavit of service of Samuel Wachira Mbuthia, that service of the motion was effected upon John Githinji on 12th April 2009. That service must have prompted him to write to Court. It is obvious from the affidavit of service of Samuel Mbuthia that the motion was not served upon the Defendant and or her legal representative. Mr. Karweru, learned advocate was not candid to this Court when he stated that there was proper service. On this point alone, I do not think it is wise for me to make any conclusive findings on the motion. I hereby set aside the proceedings taken before me exparte. I direct the motion to be marked as stood over generally. A hearing date to be given by the registry and that the motion be served with a Hearing Notice.
Dated and delivered this 29th day of July 2009.
J. K. SERGON
JUDGE
In open Court in the presence of Mr. Nderi holding brief for Mr. Karweru for Applicant.