[2010] KEHC 410 (KLR)
The court found that the respondent was never served with the application for injunction, as evidenced by the process server's affidavit and the CID report. Since the ex parte orders were obtained without proper service, they were set aside ex debito justitiae. The court emphasized that orders made without notice to...
Source-derived case information.
- Citation
- [2010] KEHC 410 (KLR)
- Parties
- Applicant: Peter Kihara Kuria; Applicant: Grace Wairimu Kuria; Respondent: 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 / Ruling on Application to Set Aside Ex Parte Injunction
- Outcome
- Application to set aside ex parte injunction allowed; injunction orders set aside and discharged with costs to the respondent.
- Judges
- MJA Emukule
- Legal Topics
- Ex Parte Orders, Service of Process, Injunctions, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kihara Kuria
Applicant
Grace Wairimu Kuria
Applicant
Hannah Nyambura Kuria
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Ex Parte Injunction
Legal Issues
- 1 Whether the ex parte injunction orders granted on 19th January 2010 should be set aside for lack of service on the respondent.
- 2 Whether the affidavit of service relied upon to obtain the injunction was false.
Ratio Decidendi
The court found that the respondent was never served with the application for injunction, as evidenced by the process server's affidavit and the CID report. Since the ex parte orders were obtained without proper service, they were set aside ex debito justitiae. The court emphasized that orders made without notice to the affected party, especially where service is falsely claimed, cannot stand. The applicant was advised to pursue the appeal route rather than seek review or further orders in the High Court.
Court Disposition
Application to set aside ex parte injunction allowed; injunction orders set aside and discharged with costs to the respondent.
Orders
- The order of injunction made on 19th January 2010 is set aside and discharged.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
SUCCESSION CAUSE NO. 83 OF 1994
IN THE MATTER OF THE ESTATE OF MBUGUA WANGUNYU KURIA - DECEASED
PETER KIHARA KURIA………………………………….……..………………..1ST PETITIONER
GRACE WAIRIMU KURIA……………..….……………………………………..2ND PETITIONER
VERSUS
HANNAH NYAMBURA KURIA………………………………………………………..OBJECTOR
RULING
The Applicant Peter Kuria was granted ex parte orders on 19th January 2010 restraining the Respondent by herself, her servants and/or agents from cutting down trees, ploughing, building and/or putting to waste the Applicant's portion of Plot No. 320, Milangine Scheme. His application was dated 21st October, 2009.
By an application dated 12th February 2010 the Respondent has applied to this court to reverse those orders under Order XXXIX rule 4 of the Civil Procedure Rules. The principal ground is that the orders issued on 19th January 2010 were obtained upon a false affidavit of one Ominde Daniel, a process server who has sworn an affidavit that he never served any summons upon the Respondent.
It is clear from the detailed Report by the C.I.D. attached to the Respondent's Supporting Affidavit sworn on 12th February 2010 that the Respondent was never served, and orders of 19th January 2010 should be set aside ex debito justitiae.
I notice that the Applicant had filed a Notice of Appeal dated 26th March 2006 against the decision of the court delivered on 26th November, 2004.
I would commend the Applicant to pursue that option as it is highly doubtful the judgment of 26th November 2004 would be subject to review, with a hope that another judge of the High Court would come to a different decision.
I would therefore allow the Respondent's Application dated 12th February, 2010 in terms of prayer (b) thereof, that the order of injunction made on 19th June 2010 be and are hereby set aside and discharged with costs to the Respondent.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 5th day of November 2010
M. J. ANYARA EMUKULE
JUDGE