[2008] KEHC 532 (KLR)
The court determined that the hearing proceeded ex parte without evidence of service upon the respondent, as required by the Civil Procedure Rules. The absence of an affidavit of service and the short notice for the hearing date meant that the respondent was not given sufficient opportunity to attend or respond. The...
Source-derived case information.
- Citation
- [2008] KEHC 532 (KLR)
- Parties
- Applicant: Mwanajuma Mohamed Mwajinga; Respondent: Athmani Said Guo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 366 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Hearing and Service Irregularity
- Outcome
- Judgment arrested; matter to be heard afresh with proper service.
- Legal Topics
- Ex Parte Hearing, Service of Process, Rectification of Register, Registered Land, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanajuma Mohamed Mwajinga
Applicant
Athmani Said Guo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Hearing and Service Irregularity
Legal Issues
- 1 Whether the matter could properly proceed ex parte in the absence of an affidavit of service upon the respondent.
- 2 Whether the hearing notice was served in compliance with the Civil Procedure Rules regarding sufficient notice to the respondent.
- 3 Whether judgment entered in such circumstances would be liable to be set aside ex debito justitiae.
Ratio Decidendi
The court determined that the hearing proceeded ex parte without evidence of service upon the respondent, as required by the Civil Procedure Rules. The absence of an affidavit of service and the short notice for the hearing date meant that the respondent was not given sufficient opportunity to attend or respond. The court held that entering judgment in such circumstances would be procedurally improper and liable to be set aside as of right. Exercising its inherent jurisdiction, the court arrested the judgment and directed that the matter be heard afresh with proper notice and service to the respondent, ensuring compliance with procedural fairness and the rules of natural justice.
Court Disposition
Judgment arrested; matter to be heard afresh with proper service.
Orders
- Judgment in this matter is arrested and the matter shall be heard afresh.
- The applicant is to invite the respondent or his representative to attend at the Registry for the taking of a fresh hearing date mutually convenient to both parties.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc Civil Suit 366 of 2008 (OS
IN THE MATTER OF: LAND PARCEL NO KWALE UKUNDA 965
AND
IN THE MATTER OF: REGISTERED LAND ACT CAP 300 (LAWS OF KENYA) SECTION 143
AND
IN THE MATTER OF: THE RECTIFICATION OF THE REGISTER AT THE KWALE DISTRICT LANDS REGISTRY
BETWEEN
MWANAJUMA MOHAMED MWAJINGA .…………….….. APPLICANT
V E R S U S
ATHMANI SAID GUO …………………………………… RESPONDENT
R U L I N G
This matter was heard on 17th October, 2008, and judgment reserved for delivery today. The court now finds itself in the unfortunate position in which it has to deliver a ruling instead of a judgment.
The reason for this change of events is that this matter was heard ex parte. Owing to an oversight on the part of the court, the court did not notice that the hearing date was taken ex parte and that there was no affidavit of service on record. If the respondent had been duly served, it is imperative that such an affidavit ought to have been filed.
Secondly, the date for the hearing of the application by Originating Summons dated 9th July, 2008, was taken on 14th October, 2008. And the application was fixed for hearing 3 days later, to wit, on 17th October, 2008.
Quite apart from the fact that there was no evidence of service upon the respondent, it is not certain that any such notice would have complied with O.IXB rule 3(c) of the Civil Procedure Rules which requires that hearing notice be served in sufficient time for the defendant to attend.
In these circumstances, I find that this matter should not have proceeded ex parte, and that if judgment is entered in such circumstances, the respondent would be entitled to set it aside ex debito justitiae. In exercise of the court’s inherent jurisdiction under Section 3A of the Civil Procedure Act, I accordingly direct –
1. That judgment in this matter be and is hereby arrested and that the matter be heard afresh.
2. That the applicant do invite the respondent or his representative to attend at the Registry for the taking of a fresh hearing date which is mutually convenient to both parties.
3. That in the event that the Respondent or his representative does not attend at the Registry, then an ex parte hearing date be taken and an appropriate notice thereof do issue to the respondent in sufficient time for him to attend.
4. That the costs for the attendance on 17th October, 2008 and those for today be borne by the Applicant.
It is so ordered.
Dated and delivered at Mombasa this 31st day of October 2008.
L. NJAGI
JUDGE