[2014] KEHC 3597 (KLR)
The court determined that it was improper to proceed to give a date for the ruling on the preliminary objection without hearing all parties, particularly when some parties may have been absent under the belief that the matter was only coming up for mention. In the interest of justice and to uphold the right to be...
Source-derived case information.
- Citation
- [2014] KEHC 3597 (KLR)
- Parties
- Plaintiff: Nassar Mohamed A. Bayusuf; Plaintiff: M. A. Bayusuf & Sons Limited; Defendant: Fadhil Mohamed Bayusuf; Defendant: Yusuf Mohamed Bayusuf; Defendant: Ahmed Mohamed Bayusuf; Defendant: Iqbal Bayusuf
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 212 of 2012
- Procedural Posture
- Civil Suit / Ruling on Setting Aside Previous Order and Fixing Hearing Date for Preliminary Objection
- Outcome
- Order of 16th June 2014 set aside; new hearing date for preliminary objection to be fixed.
- Judges
- MM Kasango
- Legal Topics
- Preliminary Objection, Setting Aside Orders, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nassar Mohamed A. Bayusuf
Plaintiff
M. A. Bayusuf & Sons Limited
Plaintiff
Fadhil Mohamed Bayusuf
Defendant
Yusuf Mohamed Bayusuf
Defendant
Ahmed Mohamed Bayusuf
Defendant
Iqbal Bayusuf
Defendant
Procedural Posture
Civil Suit / Ruling on Setting Aside Previous Order and Fixing Hearing Date for Preliminary Objection
Legal Issues
- 1 Whether it was proper to fix a ruling date for the preliminary objection without hearing all parties.
- 2 Whether the order made on 16th June 2014 should be set aside in the interest of justice.
Ratio Decidendi
The court determined that it was improper to proceed to give a date for the ruling on the preliminary objection without hearing all parties, particularly when some parties may have been absent under the belief that the matter was only coming up for mention. In the interest of justice and to uphold the right to be heard, the court set aside and vacated the order made on 16th June 2014 and directed that a new hearing date for the preliminary objection be fixed, after which a ruling date would be given.
Court Disposition
Order of 16th June 2014 set aside; new hearing date for preliminary objection to be fixed.
Orders
- The order of 16th June 2014 is set aside and vacated.
- A date shall be fixed for the hearing of the Preliminary Objection.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 212 OF 2012
NASSAR MOHAMED A. BAYUSUF ……………………………1ST PLAINTIFF
M. A. BAYUSUF & SONS LIMITED …………………………... 2ND PLAINTIFF
V E R S U S
FADHIL MOHAMED BAYUSUF ……………………………. 1ST DEFENDANT
YUSUF MOHAMED BAYUSUF ……………..……………… 2ND DEFENDANT
AHMED MOHAMED BAYUSUF …………………………… 3RD DEFENDANT
IQBAL BAYUSUF ………………………………………….... 4TH DEFENDANT
RULING
As I began to consider today’s Ruling it became apparent to me that on 14th May 2014 this matter was fixed for mention on 16th June 2014 with a view to the Court receiving parties consent, if any.
On 16th June 2014 only the Plaintiffs and 2nd Defendants were present in Court. There was no representation for 1st, 3rd and 4th Defendants.
Parties present on that day informed the Court that negotiations had not borne any fruit and that there was no consent to record.
On parties requesting the Court for Directions about the hearing of 2nd Defendant’s Preliminary Objection dated 11th December 2013 the Court proceeded to give a date of Ruling of that Preliminary Objection. In hind-sight it was not right to proceed to give a date for ruling without hearing all the parties. The parties who were absent on that day may have absented themselves in the belief that the matter was only coming up for mention, and not for hearing.
Because of the above observation I will today proceed to give the parties a hearing date of the Preliminary Objection after which another date of Ruling will be given.
It is on that basis that on the Court’s own motion and in the interest of justice the order of 16th June 2014 is hereby set aside and vacated. It is substituted by an order that a date be fixed for the hearing of the Preliminary Objection.
It is so ordered.
DATED and DELIVERED at MOMBASA this 31ST day of JULY, 2014.
MARY KASANGO
JUDGE