[2013] KEHC 6497 (KLR)
The court found that there was no evidence that the hearing notice was sent to the ex-parte applicant by registered post, nor was there proof that the hearing date was taken by consent of the parties. The only evidence was that the applicant acknowledged receipt of the hearing notice on 19th May 2006, after the...
Source-derived case information.
- Citation
- [2013] KEHC 6497 (KLR)
- Parties
- Applicant: Republic; Respondent: Auctioneers Licensing Board; Applicant: Duncan Mugambi t/a Wright Auctioneers; Interested Party: Emily Wambui Kabuthu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 362 of 2006
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application allowed. Decision of the Auctioneers Licensing Board quashed.
- Judges
- DAS Majanja
- Legal Topics
- Judicial Review, Natural Justice, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Auctioneers Licensing Board
Respondent
Duncan Mugambi t/a Wright Auctioneers
Applicant
Emily Wambui Kabuthu
Interested Party
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the ex-parte applicant was denied the right to natural justice by not being notified in good time of the hearing date.
- 2 Whether service of the hearing notice by registered post was effected and sufficient.
Ratio Decidendi
The court found that there was no evidence that the hearing notice was sent to the ex-parte applicant by registered post, nor was there proof that the hearing date was taken by consent of the parties. The only evidence was that the applicant acknowledged receipt of the hearing notice on 19th May 2006, after the hearing had already taken place on 16th May 2006. In the absence of a response from the respondent or a copy of the proceedings, the court could not conclude that the applicant was properly notified or that the requirements of natural justice were met. Consequently, the decision of the Auctioneers Licensing Board was quashed for failure to observe the rules of natural justice.
Court Disposition
Application allowed. Decision of the Auctioneers Licensing Board quashed.
Orders
- Order of certiorari issued removing to the High Court the decision of the Auctioneers Licensing Board dated 30th May 2006 and quashing it.
- The respondent shall bear the costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. CIVIL APPL. NO 362 OF 2006
BETWEEN
REPUBLIC ……………………………………..…… APPLICANT
AND
THE AUCTIONEERS LICENSING BOARD ..... RESPONDENT
EX-PARTE
DUNCAN MUGAMBI T/A WRIGHT AUCTIONEERS
AND
EMILY WAMBUI KABUTHU ................ INTERESTED PARTY
JUDGMENT
The matter before the Court is a Notice of Motion dated 20th July 2006 in which the exparte applicant, an auctioneer, seeks orders of judicial review in respect of a decision of the Auctioneers Licensing Board dated 30th May 2006 arising from a complaint lodged by the interested party. The auctioneer was reprimanded and fined the sum of Kshs.30,000/= to be paid within 30 days. In default of payment, he would stand suspended.
The material ground upon which he seeks relief is that he was not notified in good time of the hearing scheduled for 16th May 2006 and he only received the notice on 19th May 2006 after the matter had been heard. He therefore claims that his right to natural justice was violated.
Since this matter was filed, the respondent, though served with process, has not filed any response nor appeared to oppose the application. The interested party opposes the application by her replying affidavit sworn on 13th September 2006 in which she depones that the notice was sent by registered post which is a mode of service recognised and invoked by the Board and which is presumed to be effective hence the ex-parte applicant was properly served. Further that the date was taken in the presence of both parties and their counsel and the posting of the notice was as a matter of cause. Her argument is that the notice was duly served in the circumstances.
I have considered the material before me and in the absence of a deposition on behalf of the Board or a copy of the proceedings, I am unable to say definitely that the date was taken by consent of the parties. Further, the notice annexed to the interested party’s replying affidavit shows an acknowledgement of the hearing notice by the auctioneer on 19th May 2006. There is also no evidence the notice having been sent by registered post.
In the circumstances, I allow the Notice of Motion dated 20th July 2006 and I issue an order of certiorari removing to this Honourable Court the decision of the Auctioneers Licensing Board dated 30th May 2006 made against the exparte applicant and it is hereby quashed. The respondent shall bear the costs.
DELIVERED and DATED at NAIROBI this 7th August 2013
D.S. MAJANJA
JUDGE
Mr Onyango instructed by A. I. Onyango and Company Advocates for the ex-parte applicant.
Mr Kinga instructed by Khaminwa and Khaminwa Advocates for the interested party.