[2010] KEHC 2126 (KLR)
The court found that the affidavit of service relied upon to grant the ex-parte injunction was disowned by the purported deponent, Ominde Daniel, who denied both serving the application and swearing the affidavit. The respondent, Peter Kihara Kuria, subsequently changed his account regarding who effected service,...
Source-derived case information.
- Citation
- [2010] KEHC 2126 (KLR)
- Parties
- Respondent: Peter Kihara Kuria; Applicant: Hannah Nyambura Kuria
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 83 of 1994
- Procedural Posture
- Succession Cause / Interlocutory Application to Set Aside Ex Parte Injunction
- Outcome
- Ex-parte injunction set aside; matter referred for criminal investigation.
- Legal Topics
- Service of Process, Ex Parte Orders, Injunctions, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kihara Kuria
Respondent
Hannah Nyambura Kuria
Applicant
Procedural Posture
Succession Cause / Interlocutory Application to Set Aside Ex Parte Injunction
Legal Issues
- 1 Whether the respondent was properly served with the application for injunction.
- 2 Whether the affidavit of service relied upon was valid and truthful.
- 3 Whether the ex-parte injunction should be set aside due to lack of service.
Ratio Decidendi
The court found that the affidavit of service relied upon to grant the ex-parte injunction was disowned by the purported deponent, Ominde Daniel, who denied both serving the application and swearing the affidavit. The respondent, Peter Kihara Kuria, subsequently changed his account regarding who effected service, further undermining the credibility of the service. In light of these inconsistencies and the lack of proper service, the court determined that the ex-parte injunction was improperly obtained. The court directed the Criminal Investigation Department (CID) to investigate the circumstances surrounding the false affidavit and to take appropriate action against the person responsible...
Court Disposition
Ex-parte injunction set aside; matter referred for criminal investigation.
Orders
- The Criminal Investigation Department (CID) is directed to investigate the swearing and filing of the affidavit of service dated 18th November 2009 and filed on 19th November 2009.
- Appropriate action to be taken against whoever is found responsible for the false affidavit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Succession Cause 83 of 1994
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IN THE MATTER OF THE ESTATE OF MBUGUA WANGUNYU KURIA – DECEASED
PETER KIHARA KURIA….…PETITIONER/RESPONDENT
VERSUS
HANNAH NYAMBURA KURIA…OBJECTOR/APPLICANT
COURT:
Relying on the affidavit of service allegedly sworn by Ominde Daniel, I allowed the applicant, Peter Kihara Kuria, to proceed with his application of 21/10/2009 ex-parte and issued an injunction. The respondent has now applied to set aside that injunction on the ground that she was not served with the application. In support of that application is the said Ominde Daniel’s affidavit in which he has denied serving the respondent with the applicant’s injunction application or swearing that affidavit of service. The applicant, Mr. Peter Kihara Kuria has now changed his story that the application was serviced by some lady known as Veronica Wangari. I direct the CID to investigate the matter and take appropriate action against whoever swore and or filed the affidavit sworn on 18th November 2009 and filed on 19/11/2009. Mention on 28/6/2010.
D. K. MARAGA
JUDGE.
8/6/2010