[2012] KEHC 2551 (KLR)
The court found that the central issue was whether the defendant named in the suit, Bwana Bin Bwanaadi Bakari, was deceased at the time of the commencement of the suit. If so, the suit would be a nullity. However, there was conflicting evidence regarding the identity of the person who signed the Notice of...
Source-derived case information.
- Citation
- [2012] KEHC 2551 (KLR)
- Parties
- Plaintiff: Pascal Joseph Fondo; Defendant: Bwana Bin Bwanaadi Bakari (deceased)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 610 of 2011
- Procedural Posture
- Civil Suit / Interlocutory Ruling
- Outcome
- Summons issued to Mohamed Bwana Bwanaadi Bakari to clarify identity; no final orders on prayers granted at this stage.
- Judges
- F Tuiyott
- Legal Topics
- Service of Process, Capacity to Sue and Be Sued, Setting Aside Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pascal Joseph Fondo
Plaintiff
Bwana Bin Bwanaadi Bakari (deceased)
Defendant
Procedural Posture
Civil Suit / Interlocutory Ruling
Legal Issues
- 1 Whether service of summons on Mohamed Bwana Bwanaadi was proper and regular.
- 2 Whether the Notice of Appointment of Advocate filed by Mohamed Bwana Bwanaadi is competent.
- 3 Whether proceedings and orders made ex-parte should be set aside for want of a competent defendant.
Ratio Decidendi
The court found that the central issue was whether the defendant named in the suit, Bwana Bin Bwanaadi Bakari, was deceased at the time of the commencement of the suit. If so, the suit would be a nullity. However, there was conflicting evidence regarding the identity of the person who signed the Notice of Appointment of Advocate. The court determined that before making any drastic orders, it must be satisfied as to the true identity of the person who signed the Notice and whether the defendant is indeed deceased. Accordingly, the court issued summons to Mohamed Bwana Bwanaadi Bakari to appear and clarify the matter, deferring any final orders until this issue is resolved.
Court Disposition
Summons issued to Mohamed Bwana Bwanaadi Bakari to clarify identity; no final orders on prayers granted at this stage.
Orders
- Summons to issue to Mohamed Bwana Bwanaadi Bakari to appear before the court on 20th September 2012.
- Summons to be served by the firm of Stephen Macharia Kimani Advocate.
Full Case Text
Judgment text and source record
39 paragraphs
PASCAL JOSEPH FONDO.........................................................................................................PLAINTIFF
V E R S U S
BWANA BIN BWANAADI BAKARI.........................................................................................DEFENDANT
RULING
The Estate of Bwana Bwanaadi has through its legal representative Omar Bwana Bwanadi asked this Court to grant the following prayers-
(a)The service of summons to enter appearance effected on Mr. Mohamed Bwana Bwanaadi be and is hereby set aside for being irregular service;
(b)The Notice of Appointment of Advocate filed by the said Mohamed Bwana Bwanaadi is expunged from the record for being incompetent;
(c)The proceedings taken and orders made ex-parte herein are set aside ex-debito justitiae for want of a competent Defendant capable of obeying the orders;
(d)Directions on the competence and propriety or otherwise of the present suit be given now that the Defendant names herein is deceased, and was so Deceased at the commencement of the suit;
The gravamen of the application is that the person named as the Defendant Bwana Bin Bwanadi Bakari died on 13th February 1994. If these were true then the suit is a nullity as a suit against a dead person is still born.
The Plaintiffs do not think that the Defendant is dead and point to the Notice of Appointment of Advocate dated 30th November 2011. I reproduce that Notice-
“NOTICE OF APPOINTMENT OF ADVOCATE UNDER PROTEST
I, BWANA BWANADI BAKARI, the Defendant named in the plaint filed herein but who has not been served with summons to enter appearance in this suit do hereby appoint UNDER PROTEST Mr. Stephen Macharia Kimani Advocate to represent me in this matter. My address of service for the limited purpose of setting aside service of process is C/o Stephen Macharia Kimani Advocate, 1930 Building, Meru road, 1st Floor, Opp. KCB Town Centre Branch, P.O. Box 1520 80100 Mombasa.
Dated at Mombasa this 30th day of November 2011.
BWANA BIN BWANADI BAKARI
Drawn by
Bwana Bin Bwanadi Bakari
P.O. Box273
Mtwapa.
To be served upon
Stephen Macharia Kimani,
Advocate
1930 Building, Meru Road, P.O. Box 1520 80100, Mombasa
Gikandi and Co. Advocates
Plot No. 352/21
Sauti ya Kenya Road
Mombasa”
In the affidavit in support of the application the administrator has deposed that the said Notice was signed, not by the Deceased, but by Mohamed Bwana Bwanaadi Bakari who is a son of the Deceased. As said earlier if the Defendant herein is dead then it would be the end of this matter. The Court needs to be satisfied that the person named as the Defendant is indeed dead before making such a drastic order.
Towards this, the Court must establish the true identity of the person who signed the Notice of Appointment in the name of the Defendant. As the Court is told that it is Mohamed Bwana Bwanaadi Bakari who signed that appointment then that would be good place to start.
This Court does hereby issue summons upon Mohamed Bwana Bwanaadi Bakari to appear before it on 20th September 2012. The summons shall be served by the firm of Stephen Macharia Kimani Advocate.
Dated and delivered at Mombasa this 28th day of August, 2012.
F. TUIYOTT
JUDGE
Dated and delivered in open court in the presence of:-
Gikandi for the Plaintiff
Kimani for the Defendant
Court clerk - Moriasi
F. TUIYOTT
JUDGE