[2006] KEHC 1474 (KLR)
The court found that the plaintiff/respondent was not personally served with the application, as required by law. The affidavit of service indicated that only the advocates were served. The court held that it would be unfair to make a ruling affecting the respondent without her prior knowledge of the application,...
Source-derived case information.
- Citation
- [2006] KEHC 1474 (KLR)
- Parties
- Plaintiff: Mary Waithira Kanyari; Defendant: Kantafu Company Limited; Defendant: Kenya Power & Lighting Company Limited
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 44 of 2003
- Procedural Posture
- Civil Case / Ruling on Notice of Motion Regarding Service of Application
- Outcome
- Proceedings of 11th May, 2006 set aside; plaintiff/respondent to be personally served for inter partes hearing.
- Judges
- JW Lessit
- Legal Topics
- Service of Process, Setting Aside Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Waithira Kanyari
Plaintiff
Kantafu Company Limited
Defendant
Kenya Power & Lighting Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion Regarding Service of Application
Legal Issues
- 1 Whether the plaintiff/respondent was properly served with the application as required by law.
- 2 Whether proceedings should be set aside due to lack of personal service on the plaintiff/respondent.
Ratio Decidendi
The court found that the plaintiff/respondent was not personally served with the application, as required by law. The affidavit of service indicated that only the advocates were served. The court held that it would be unfair to make a ruling affecting the respondent without her prior knowledge of the application, regardless of whether such service would ultimately affect the outcome. Therefore, the proceedings of 11th May, 2006, were set aside to ensure that the respondent is properly served and given an opportunity to be heard, upholding the principles of natural justice and fair hearing.
Court Disposition
Proceedings of 11th May, 2006 set aside; plaintiff/respondent to be personally served for inter partes hearing.
Orders
- The proceedings of this court on 11th May, 2006 are set aside.
- The plaintiff/respondent shall be served in person together with her advocates for inter partes hearing on a date to be set in court.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Case 44 of 2003
MARY WAITHIRA KANYARI .........................................................................................................PLAINTIFF
VERSUS
KANTAFU COMPANY LIMITED
KENYA POWER & LIGHTING COMPANY LIMITED........................................................DEFENDANTS
R U L I N G
After hearing submissions into the Notice of Motion dated 19th June 2005 by the applicant/2nd defendant, I have since noted that the plaintiff/Respondent herself, who stands to be affected by the orders sought in this application, was not served in person. The affidavit of service was handed over to the court at the time the application was heard. This affidavit shows that the persons served were plaintiffs/Respondent’s advocates. It would be unfair to make any ruling in the matter without the Respondents prior knowledge of this application even if the service to her may or may not affect the ruling.
Consequently, I set aside the proceedings of this court on 11th May, 2006.
Further I order that the plaintiff/Respondent be served in person together with the firm of advocates representing her for inter partes hearing on a date to be set in court.
Dated 17th May, 2006, at Machakos.
J. LESIIT
JUDGE