[2015] KEELC 226 (KLR)
The court found that Silvia Bolzoni was properly enjoined in the suit as a party by the consent of both parties after obtaining limited letters of administration, and this consent was adopted as an order of the court. The applicant's challenge to Silvia Bolzoni's capacity was previously dismissed and cannot be...
Source-derived case information.
- Citation
- [2015] KEELC 226 (KLR)
- Parties
- Applicant: Naomi Michelle Levy; Respondent: Giuseppe Bolzoni
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 7 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Proceedings and Strike Out Evidence
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Setting Aside Ex Parte Orders, Party Substitution, Locus Standi, Counterclaim Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naomi Michelle Levy
Applicant
Giuseppe Bolzoni
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Proceedings and Strike Out Evidence
Legal Issues
- 1 Whether the proceedings and judgment delivered ex-parte should be set aside due to alleged lack of capacity of a substituted defendant.
- 2 Whether the evidence and affidavit of Silvia Bolzoni should be struck out for lack of capacity.
- 3 Whether the issue of locus standi of Silvia Bolzoni can be raised at this stage of proceedings.
Ratio Decidendi
The court found that Silvia Bolzoni was properly enjoined in the suit as a party by the consent of both parties after obtaining limited letters of administration, and this consent was adopted as an order of the court. The applicant's challenge to Silvia Bolzoni's capacity was previously dismissed and cannot be revisited at this stage. The court held that the applicant cannot seek to set aside the proceedings on grounds that could only have been raised at trial, especially where the applicant failed to attend the hearing. Accordingly, the application to set aside the ex-parte proceedings and to strike out Silvia Bolzoni's evidence was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 3rd September 2015 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
HCCC NO.7 OF 2008
NAOMI MICHELLE LEVY..............................................PLAINTIFF/APPLICANT
=VERSUS=
GIUSEPPE BOLZONI..............................................DEFENDANT/RESPONDENT
R U L I N G
On 8th July 2015, this court dismissed, for the second time, the Plaintiff's suit for non-attendance and proceeded to hear the Defendant's Counter-claim. The matter is awaiting the delivery of Judgment.
The Plaintiff has now filed an Application dated 31st August, 2015 seeking for the following orders:
(a) THAT the ex-parte hearing and proceedings and judgment ordered to be delivered on notice be set aside and stayed respectively.
(b) THAT the affidavit sworn by SYLVIA BOLZONI On the 29th April 2015 and the subsequent oral testimony in its support be struck out/expunged from record.
(c) THAT cost be in the cause.
The Application is premised on the ground that the letter of administration in respect of the Estate of the deceased was issued to Laura Bolzoni on 21st May 2010; that the said Laura Bolzoni has never appeared in court; that for a party to be substituted, an Application ought to be made to court and that Silvia Bolzoni is not a competent party to be substituted as a Defendant for lack of capacity.
On those grounds alone, the Plaintiff is seeking to set aside the proceedings of this court.
The Defendant's advocate filed a Replying affidavit in which he deponed that Silvia Bolzoni obtained limited grant on 15th December, 2010; that on 28th March 2011, the parties agreed to have Silvia Bolzoni to be enjoined in the suit as a party and that the consent of the parties on the substitution of the Defendant was adopted by the court.
The Defendant's advocate deponed that when the Plaintiff's advocate raised the issue of the locus standi of Silvia Bolzoni by way of an Application dated 11th February, 2011, the court dismissed the Application.
As I have already stated, the Plaintiff's suit was dismissed for non-attendance and the court proceeded to hear the Defendant's counterclaim. The Plaintiff is seeking to set aside the dismissal of her suit and setting aside the proceedings of this court on the ground that the witness who gave evidence in respect to the Counter-claim, Silvia Bolzoni, is not a competent party.
The issue of whether Silvia Bolzoni, DW1, is a competent witness or not could only have been raised by the Plaintiff at trial. The Plaintiff cannot raise that issue by way of an Application to set aside the proceedings of 8th July, 2015 in which she never participated.
In any event, the record shows that Silvia Bolzoni was enjoined in this suit by the consent of both parties after obtaining limited letters of administration. The said consent was adopted as an order of the court. Consequently, that issue cannot be raised at this stage.
For those reasons, I dismiss with costs the Application dated 3rd September 2015.
Dated and delivered in Malindi this 2nd day of October2015.
O. A. Angote
Judge