[2013] KEHC 4196 (KLR)
The court declined to grant the orders sought by the applicant because proper service of the hearing notice on the defendant was not demonstrated. The process server's affidavit failed to establish that service was effected on the correct firm of advocates, as the hearing notice was stamped by a different advocate...
Source-derived case information.
- Citation
- [2013] KEHC 4196 (KLR)
- Parties
- Plaintiff: Omari Kaburu; Defendant: Industrial and Commercial Development Corporation
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 19 of 2000
- Procedural Posture
- Civil Case / Interlocutory Application Ruling
- Outcome
- Application dismissed for want of proper service; applicant directed to serve and fix for inter partes hearing.
- Legal Topics
- Service of Process, Interlocutory Injunctions, Setting Aside Sale
- 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
Omari Kaburu
Plaintiff
Industrial and Commercial Development Corporation
Defendant
Procedural Posture
Civil Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether proper service of the hearing notice was effected on the defendant.
- 2 Whether the orders sought, including annulment of a sale and deposit of rent, can be granted at the interlocutory stage.
- 3 Whether striking out an application filed by counsel allegedly not properly on record is appropriate without hearing the affected party.
Ratio Decidendi
The court declined to grant the orders sought by the applicant because proper service of the hearing notice on the defendant was not demonstrated. The process server's affidavit failed to establish that service was effected on the correct firm of advocates, as the hearing notice was stamped by a different advocate with no disclosed relationship to the defendant's counsel. Furthermore, the court held that substantive orders such as annulment of a sale and deposit of rent cannot be granted at the interlocutory stage, particularly when the status of the property is unclear and the application seeks to revisit events from a decade prior. The court also found that striking out an application...
Court Disposition
Application dismissed for want of proper service; applicant directed to serve and fix for inter partes hearing.
Orders
- The application dated 5th December 2012 is declined ex parte.
- The applicant is directed to serve the application properly on the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Civil Case 19 of 2000 [if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif]
OMARI KABURU …..............................................………………………………..…………..PLAINTIFF
VERSUS
INDUSTRIAL AND COMMERCIAL DEVELOPMENT CORPORATION……….….. DEFENDANT
RULING
The plaintiff/applicant has sought orders in an application dated 5th December 2012. The orders sought are
a).Service be dispensed with in the first instance.
b).That it pleases the court to order a restriction to be placed on E. Bukusu/S. Kanduyi/4026 pending hearing and determination of this application.
c).The application dated 18. 3.2005 be struck out as counsel who filed the same is not properly on record.
d).That any purported sale or auction or at all that was conducted on the 7. 1.2003 be annulled and/or declared void and that rents from the tenant one Lawrence Sifuna as from the 7. 11. 2003 to date be deposited in court at rate of Kshs. 16,000/= per month.
e).That upon vacation of the sale or treaty, an injunction be issued restraining the defendants by themselves, agents and or servants from attempting to dispose, transfer or sell till the suit herein is heard and determined.
f).Costs be provided for.
The application was filed on 1st February 2013. On 14th February 2013 a hearing date was given from the registry fixing the application for hearing on 18. 3.2013.
on 18th March 2013, there was no appearance for both respondents. The applicant sought to have the prayers granted as the application is unopposed. I have looked at the affidavit of service filed on record.
The affidavit sworn by the process server, one Charles Alumasa at paragraph 2, says he received hearing notice to be served upon the firm of Kamau Kania & co. advocates P.o. Box 45519 – 00100 (GPO) Nairobi. On 27th February he travelled to Nairobi town to the firm of Kamau Kania advocates. He does not disclose the physical building where according to him he located the said firm of advocates. Further at paragraph 4 he avers that he met a clerk who accepted service and rubber stamped copy of his hearing notice presumably with rubberstamp of firm of Kamau Kania & co Advocates. The hearing notice however is stamped by M.C. Mulwa advocate. That cannot be treated as the same as Kamau Kania & co. advocates. No relationship has been disclosed between the firm of Kamau Kania and M.C. Mulwa. This to me was not proper service.
Secondly the prayers sought in the application particularly prayer (d) cannot be granted at an interlocutory stage by way of application. The sale was done in 2003, the applicant wants this court to cancel the same 10 years later by way of application. The court finds this as very misleading as the status on the ground is unknown. Prayer (c) also refers to a totally different application that was not listed for hearing. It will be condemning the applicant in application dated 18. 3.2005 unheard thus contravening the rules of natural justice.
Finally the applicant has not demonstrated that he served the present application on the 1st respondent. In the final analysis, I decline to grant the orders sought by the applicant exparte. The applicant is directed to serve the application properly on the respondents and fix the same for hearing for the full determination in the presence of both parties.
RULING DATED, SIGNED, DELIVERED AND READ in open court this 28th Day of March 2013.
A. OMOLLO
JUDGE.
[if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]