[2006] KEHC 1463 (KLR)
The court found that the defendant's advocate had not served the notice of preliminary objection on the plaintiff's advocate before arguing it in court. This omission was contrary to the rules of procedure and principles of natural justice, which require that all parties be given proper notice and an opportunity to...
Source-derived case information.
- Citation
- [2006] KEHC 1463 (KLR)
- Parties
- Plaintiff: Ndanu Musyimi Nzomo; Defendant: Muvee Kasia
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 374 of 1998
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- proceedings set aside; preliminary objection to be served and argued afresh; costs shared
- Legal Topics
- Preliminary Objection, Service of Process, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndanu Musyimi Nzomo
Plaintiff
Muvee Kasia
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether it was proper for the defendant's advocate to argue a preliminary objection without serving it on the plaintiff's advocate.
- 2 Whether the proceedings of 23rd May, 2006 should be set aside due to lack of service of the preliminary objection.
Ratio Decidendi
The court found that the defendant's advocate had not served the notice of preliminary objection on the plaintiff's advocate before arguing it in court. This omission was contrary to the rules of procedure and principles of natural justice, which require that all parties be given proper notice and an opportunity to be heard. The absence of evidence of service rendered the proceedings of 23rd May, 2006 irregular. Consequently, the court set aside those proceedings and directed that the notice of preliminary objection be properly served and argued afresh. The costs of the day were ordered to be shared between the parties, reflecting the procedural lapse and the need for fairness.
Court Disposition
proceedings set aside; preliminary objection to be served and argued afresh; costs shared
Orders
- The proceedings of 23rd May, 2006 are set aside.
- The Notice of Preliminary Objection shall be served on the plaintiff's advocate and argued afresh.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Case 374 of 1998
NDANU MUSYIMI NZOMO ……...........................................………………..PLAINTIFF
VERSUS
MUVEE KASIA………………….....................................…………….……DEFENDANT
RULING
This matter was coming up for the hearing of the suit on 23rd May, 2006. When the case was called out for hearing, only Mr. Kilonzo for the defendant was present. Mrs Nzei, advocate for the plaintiff was absent.
Mrs Nzei had however sent Mr. Musyoka to hold her brief. Mr. Musyoka indicated that he was ready to proceed with the hearing of the suit. However Mr. Kilonzo stood up and informed the court that he had filed a Notice of Preliminary Objection and was ready to proceed with it. Mr. Musyoka promptly asked the court to place the file aside indicating that Mrs Nzei was on her way. One hour later, Mr.Musyoka urged the court to put off the matter since Mrs Nzei had gone to Makueni for an urgent application a matter I did not entertain as it was in breach of court practise and protocol.
Mr. Kilonzo promptly argued his Preliminary objection. It is on record as dated 24th April, 2006 and filed on 26th April, 2006. It was raising two preliminary points. What Mr. Kilonzo did not inform the court is whether or not he had served the Preliminary Objection on the plaintiff’s advocate.
Having had a chance to peruse the suit file, I find that the Preliminary Objection had not been served upon the plaintiff’s advocate. It was filed four months after the defendants advocate was served with the hearing notice for 23rd. The return of that service is on the file. There is however no return of service for the Notice of Preliminary Objection by the defendant on the plaintiff’s advocate. I find it was irregular for the defendants advocate to have argued the said notice before serving the plaintiff’s advocate. In the circumstances, the proceedings of 23rd May, 2006 are hereby set aside.
It is ordered that the Notice of Preliminary Objection be served on the plaintiff’s advocate and argued afresh.
The costs of 23rd May, 2006 will be shared between the two parties.
Dated at Machakos this 31st day of May, 2006.
J. Lesiit
JUDGE
Read, signed and delivered in open court
In the present of ;- Mrs Nzei for plaintiff
Mr. Kilonzo for defendant
Mueni – CC
J.Lesiit
JUDGE