[2014] KEHC 4799 (KLR)
The court found that it was not possible to conclusively verify whether the Defendant/Applicant was served with the application dated 12/3/2012, as the original document allegedly evidencing service was not part of the court record nor annexed to the replying affidavit. Given the uncertainty and in the interest of...
Source-derived case information.
- Citation
- [2014] KEHC 4799 (KLR)
- Parties
- Plaintiff: Kishoro Leponyo Ntiapuyok; Plaintiff: Wilson Wuantai Kishoro; Defendant: Puffins Investment Limited
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 75 of 2012
- Procedural Posture
- Civil Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Setting Aside Ex Parte Orders, Service of Process, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kishoro Leponyo Ntiapuyok
Plaintiff
Wilson Wuantai Kishoro
Plaintiff
Puffins Investment Limited
Defendant
Procedural Posture
Civil Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the Defendant/Applicant was properly served with the application dated 12/3/2012.
- 2 Whether the ex parte orders granted on 28/3/2012 should be set aside.
Ratio Decidendi
The court found that it was not possible to conclusively verify whether the Defendant/Applicant was served with the application dated 12/3/2012, as the original document allegedly evidencing service was not part of the court record nor annexed to the replying affidavit. Given the uncertainty and in the interest of justice, the court exercised its discretion to set aside the ex parte orders so that the application could be heard on its merits. The court emphasized that its main concern is to do justice to the parties and not to fetter its discretion with technicalities regarding service where proof is inconclusive.
Court Disposition
application allowed
Orders
- The ex parte orders granted on 28/3/2012 are set aside.
- The application dated 12/3/2012 to proceed on its merits.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 75 OF 2012
KISHORO LEPONYO NTIAPUYOK
WILSON WUANTAI KISHORO ..…… PLAINTIFF/RESPONDENT
VERSUS
PUFFINS INVESTMENT LIMITED ….……… DEFENDANT/APPLICANT
R U L I N G
The application dated 24/4/12 seeks orders that the orders granted by this court on 11/2/2012 be set aside.
According to the affidavit in support sworn by Kartic K. Shah,one of the Directors of the Defendant company, the application dated 12/3/2012 was heard and allowed in their absence on 28th March 2012 whereby the Plaintiffs obtained an order of temporary injunction restraining the Defendant from dealing with Land Parcel No. Kajiado/Kaputiei North/1426. The Applicant has deposed that they were served with the interim orders issued on 28/3/2012 and a hearing notice for 4/4/2012 but were never served with the suit papers. That the Applicants requested for the pleadings from the counsel for the Defendants/Respondents but they were not supplied with the same forcing the Applicants to obtain the copies thereof from the court.
The application is opposed. In the replying affidavit sworn on behalf of the Plaintiffs/Respondents, it is averred that the Applicants are misleading the court. That the application in question was served on the Defendant/Applicant and with all the pleadings and even served with the interim orders issued on 28/3/2012 and a Notice of Appointment filed by the counsel for the Defendant/Applicant was filed on 2/4/2012 without the filing of any papers in opposition to the application. It is contended that the Defendant/Applicant was properly served for the hearing of the application on 28/3/2012 and thereafter with the subsequent hearing date on 4/4/2012. That the interim orders issued on 28/3/2012 were also served on the Defendant/Applicant on 29/3/2012. That the Defendant/Applicant filed a Notice of Appointment of Advocate on 2/4/2012. That the Defendant/Applicant was served with the hearing notice for 11/4/2012 when the Defendant/Applicant failed to attend court.
The application proceeded by way of written submissions. The crux of the matter is whether the Defendant/Applicant was served with the application dated 12/3/2012 or not. I have considered the facts and circumstances of this case as outlined in the affidavits of the respective parties herein. Whereas it is difficult to verify any of the allegations and counter allegations, the original document allegedly served and signed by the Applicant does not form part of the court record and nor has it been annexed in the replying affidavit. That is the only document that could have settled the question of service.
However, as stated by the Court of Appeal in Muthaiga Road Trust Co. Ltd –vs- Five Continents Stationers Ltd & 2 Others Civil Appeal No. 298 of 2000:-
“The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules.”
To meet the ends of justice, I will exercise this court’s discretion and set aside the ex parte orders so that the application can proceed on the merits. I therefore allow the application with costs in cause. The conservatory orders issued on 28/3/12 to remain in force pending the hearing of the application dated 12/3/12.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 15thday of May2014.
………………………………………
B. THURANIRA JADEN
JUDGE