[2016] KEHC 8434 (KLR)
The court found that Nginu Power Engineering (EA) Ltd was not served with the application or hearing notice, yet orders were made affecting its interests. This amounted to a violation of the right to be heard, a fundamental principle of natural justice. The absence of service rendered the previous orders invalid,...
Source-derived case information.
- Citation
- [2016] KEHC 8434 (KLR)
- Parties
- Applicant: Nginu Power Engineering (EA) Ltd; Applicant: Robert Maina Mwangi; Respondent: Sheet and Metal Works Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2374 of 2003
- Procedural Posture
- Succession Cause / Ruling on Applications to Review and Set Aside Previous Orders
- Outcome
- applications allowed; previous orders reviewed and set aside
- Judges
- AO Muchelule
- Legal Topics
- Right to Be Heard, Service of Process, Review of Orders, Natural Justice, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nginu Power Engineering (EA) Ltd
Applicant
Robert Maina Mwangi
Applicant
Sheet and Metal Works Limited
Respondent
Procedural Posture
Succession Cause / Ruling on Applications to Review and Set Aside Previous Orders
Legal Issues
- 1 Whether the applicants were properly served with the application and hearing notice before adverse orders were made against them.
- 2 Whether the orders made on 18th April 2016 should be reviewed and set aside for lack of service and denial of the right to be heard.
Ratio Decidendi
The court found that Nginu Power Engineering (EA) Ltd was not served with the application or hearing notice, yet orders were made affecting its interests. This amounted to a violation of the right to be heard, a fundamental principle of natural justice. The absence of service rendered the previous orders invalid, and the court had no discretion but to review and set aside those orders. The court further held that the issue of which advocate was on record for the administrators was immaterial since Nginu Power Engineering (EA) Ltd, a directly affected party, was not served at all. The applications for review and setting aside were therefore allowed, and the matter was remitted for proper...
Court Disposition
applications allowed; previous orders reviewed and set aside
Orders
- The ruling and orders made on 18th April 2016 are reviewed and set aside.
- The application dated 7th September 2015 and filed on 9th September 2015 by Sheet and Metal Works Ltd shall be served on the administrators and on Nginu Power Engineering (EA) Ltd within 15 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 2374 OF 2003
IN THE MATTER OF THE ESTATE OF FRANCIS MWANGI NDUNG’U (DECEASED)
NGINU POWER ENGINEERING (EA) LTD....................APPLICANT
ROBERT MAINA MWANGI...........ADMINISTRATOR/APPLICANT
VERSUS
SHEET AND METAL WORKS LIMITED......OBJECTOR/RESPONDENT
RULING
1. The application dated 7th September 2015 and filed on 9th September 2015 by the objector Sheet and Metal Works Ltd was on 19th April 2016 allowed on the basis that Robert Maina Mwangi (the administrator of the estate of the deceased Francis Mwangi Ndungu) had been served but had not responded by filing a replying affidavit or attending the hearing. The substance of the ruling that aggrieved Robert Maina Mwangi (the applicant in application dated 31st August 2016) and Nginu Power Engineering (EA) Ltd (applicant in the motion dated 1st September 2016) was that plot No. 326 – Kariobangi was not part of the estate of the deceased; that it belonged to the objector; and that the purported sale of the same by the administrators of the estate of the deceased to Nginu Power Engineering (EA) Ltd was illegal, null and void. The applications basically sought the review and setting aside of the ruling on the ground that the application was not served on Robert Maina Mwangi and Nginu Power Engineering (EA) Ltd, and neither was the hearing date served.
2. It is clear that the application dated 7th September 2015 was indicated to be served on L. Maina Irungu & Co. Advocates. There was no indication of service to the advocates for the administrators of the estate of the deceased. The application did not indicate that Nginu Power Engineering (EA) Ltd were going to be served, and neither was there evidence of service to them. No hearing notice was served on them. This company was consequently condemned unheard. In the case of Prime Sart Works Ltd –v- Kenya Industrial Plastics Ltd [2001]EA 528, the court observed that:
“.............implicit in the concept of fair adjudication lie two cardinal principles namely that no man shall be judge of his own cause and that no man shall be condemned unheard, that these two principles of natural justice must be observed by the courts save where their application is expressly excluded.”
It is a cardinal principle of law that everyone deserves an opportunity to be heard before any order is made against him (Wilson Tanui Barno & 2 others –v- Jennipher Kositany (2015) eKLR).
3. Where there has been no service there is no discretion to be exercised. The order complained of has to be reviewed and set aside as a matter of course (Patel –v- E.A Cargo Handling Services Ltd [1974] EA 75 and Shah –v- Mbogo [1967] EA 116).
4. In respect of the application dated 31st August 2016 the complaint was that there was service on L. Maina Irungu & Co. Advocates who were acting for the administrators. This was disputed by the administrators who claimed that their advocates at the time were Wahito & Co. Advocates. Whoever was acting for the administrators at the time, and whether they were or were not served, it does not matter, now that Nginu Power Engineering (EA) Ltd were not served and were affected by the orders contained in the ruling above.
5. For these reasons, I allow the applications dated 31st August 2016 and 7th September 2016, and review and set aside the ruling and orders made by this court on 18th April 2016. I direct that the application dated 7th September 2015 and filed on 9th September 2015 by Sheet and Metal Works Ltd be served on the administrators and on Nginu Power Engineering (EA) Ltd within 15 days and for them to file their responses within 15 days of service. The parties should come for the mention of the matter on 24th January 2017 for directions. I make no order as to costs.
DATED and DELIVERED at NAIROBI this 14TH DECEMBER, 2016.
A.O. MUCHELULE
JUDGE