[2013] KEHC 2010 (KLR)
The court found that the respondent failed to take any steps to prosecute the application or serve the applicants, demonstrating a lack of intention to have the matter heard and an abuse of the court process. Consequently, the ex parte orders issued on 3/7/2013 were vacated, and the applicants were awarded costs....
Source-derived case information.
- Citation
- [2013] KEHC 2010 (KLR)
- Parties
- Applicant: Mwaniki Ireri & Co Advocates; Respondent: Giant Auctioneers; Respondent: Board of Governors SA Kyeni Secondary School
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 79 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Vacate Ex Parte Orders
- Outcome
- Application allowed in part; ex parte orders vacated; costs awarded to applicants.
- Legal Topics
- Ex Parte Orders, Stay of Execution, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwaniki Ireri & Co Advocates
Applicant
Giant Auctioneers
Respondent
Board of Governors SA Kyeni Secondary School
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Vacate Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders granted on 3/7/2013 should be vacated.
- 2 Whether the respondent abused the court process by failing to prosecute and serve the application.
- 3 Whether costs should be awarded to the applicants.
Ratio Decidendi
The court found that the respondent failed to take any steps to prosecute the application or serve the applicants, demonstrating a lack of intention to have the matter heard and an abuse of the court process. Consequently, the ex parte orders issued on 3/7/2013 were vacated, and the applicants were awarded costs. The court emphasized the importance of diligent prosecution of applications and proper service to the opposing party to ensure fairness and prevent abuse of judicial process.
Court Disposition
Application allowed in part; ex parte orders vacated; costs awarded to applicants.
Orders
- The ex parte orders issued on 3/7/2013 are hereby vacated.
- Prayer No. 2 of the Notice of Motion dated 23/7/2013 is granted.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. APPLICATION NO. 79 OF 2013
MWANIKI IRERI & CO ADVOCATES.........…....................................................APLICANT/RESPONDENT
VERSUS
GIANT AUCTIONEERS.....................................................................................................1ST RESPONDENT
BOARD OF GOVERNORS SA KYENI SECONDARY SCHOOL............2ND RESPONDENT/APPLICANT
R U L I N G
This is the Notice of Motion dated 23/7/2013. It is brought under Section 3A of the Civil Procedure Rules for orders that:-
The exparte orders granted on 10/7/2013 be vacated.
The application by Giant Auctioneers dated 10/7/2013 be allowed.
The grounds are on the face of the application. The Applicants who are the Respondent in the main application before this Court wish to have the exparte orders issued here on 3/7/2013 vacated. The Respondent came before this court on 3/7/2013 under certificate of urgency. The court was by then hearing the Election Petition No. 1/2013. I could not give any date for inter partes hearing but certified the matter as urgent because it involved a public school.
The Respondent has not taken any steps to prosecute the application. Secondly the Respondent has also not served the Applicants with the application to enable them respond. It clearly shows that the Respondent was not keen on having the mater heard but only having stay of execution. This is an abuse of the Court process.
The said orders issued on 3/7/2013 are hereby vacated. I therefore grant prayer No. 2 of the Notice of Motion dated 23/7/2013. Prayer No. 3 is not for this Court to deal. The Respondent to pay costs of this application.
DELIVERED, DATED AND SIGNED AT EMBU THIS 30TH DAY OF SEPTEMBER 2013.
H.I. ONG’UDI
J U D G E
In the presence of:-
Mr. Ireri for Applicants/Respondents
Njue CC