[2009] KEHC 1656 (KLR)

[2009] KEHC 1656 (KLR)

The court found that the affidavit of service filed by the Plaintiff/Applicant was not dated. An undated affidavit is not acceptable as it does not comply with the requirements for valid affidavit evidence under the Civil Procedure Rules. Consequently, the court could not rely on the defective affidavit to establish...

Source-derived case information.

Citation
[2009] KEHC 1656 (KLR)
Parties
Plaintiff: Leisure Lodges Limited; Defendant: John Mwaura; Defendant: Anne Nyokabi
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Case Number
Civil Case 210 of 2009
Procedural Posture
Civil Case / Interlocutory Application; Ruling on Affidavit of Service
Outcome
Application stood over; fresh hearing date to be taken and proper service to be effected.
Judges
JV Juma
Legal Topics
Affidavit of Service, Service of Process, Procedural Irregularity
Source Language
en
Civil Procedure Affidavit of Service Service of Process Procedural Irregularity

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Parties

Leisure Lodges Limited

Plaintiff

John Mwaura

Defendant

Anne Nyokabi

Defendant

Procedural Posture

Civil Case / Interlocutory Application; Ruling on Affidavit of Service

Legal Issues

  1. 1 Whether an undated affidavit of service is acceptable for purposes of proving service of hearing notice.
  2. 2 What directions should be given where the affidavit of service is defective.

Ratio Decidendi

The court found that the affidavit of service filed by the Plaintiff/Applicant was not dated. An undated affidavit is not acceptable as it does not comply with the requirements for valid affidavit evidence under the Civil Procedure Rules. Consequently, the court could not rely on the defective affidavit to establish that service had been properly effected on the Defendant/Respondent. The appropriate course was to direct the Plaintiff/Applicant to take fresh hearing dates and serve the Defendant/Respondent with a proper hearing notice supported by a valid affidavit of service.

Court Disposition

Application stood over; fresh hearing date to be taken and proper service to be effected.

Orders

  • Plaintiff/Applicant to take fresh dates for hearing of the application in the Registry.
  • Plaintiff/Applicant to serve the Defendant/Respondent with a new hearing notice.