[2023] KEHC 2772 (KLR)
The court found that there was no evidence on record that the application dated 18th July 2022 was ever served on the respondents. Without proof of service, it would be unjust to consider granting orders against the respondents, as they have not had a fair hearing. Service of court process is a cardinal requirement...
Source-derived case information.
- Citation
- [2023] KEHC 2772 (KLR)
- Parties
- Applicant: Republic; Respondent: Office of the Director of Public Prosecutions; Respondent: Director of Criminal Investigations; Respondent: Attorney-General; Interested Party: Cleophas Wakhungu Malala; Interested Party: Joel Wekesa Barasa; Interested Party: Marvin Kombo Omani; Interested Party: Ababu Shargo Borcherd; Interested Party: Cecil Ambeyi Muyuka; Interested Party: Joyce Kavere Abachi; Interested Party: Hakim Juma Ambani; Interested Party: Shakila Amboye Owingwa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E003 of 2022
- Procedural Posture
- Judicial Review Application / Ruling on Preliminary Application for Provision of Documents
- Outcome
- Application not considered; applicants directed to effect service before further steps.
- Judges
- WM Musyoka
- Legal Topics
- Service of Process, Fair Hearing, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Office of the Director of Public Prosecutions
Respondent
Director of Criminal Investigations
Respondent
Attorney-General
Respondent
Cleophas Wakhungu Malala
Interested Party
Joel Wekesa Barasa
Interested Party
Marvin Kombo Omani
Interested Party
Ababu Shargo Borcherd
Interested Party
Cecil Ambeyi Muyuka
Interested Party
Joyce Kavere Abachi
Interested Party
Hakim Juma Ambani
Interested Party
Shakila Amboye Owingwa
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Preliminary Application for Provision of Documents
Legal Issues
- 1 Whether the application dated 18th July 2022 was properly served on the respondents.
- 2 Whether the court can grant orders against parties who have not been served and therefore not heard.
- 3 Whether service of court process is fundamental to a fair hearing.
Ratio Decidendi
The court found that there was no evidence on record that the application dated 18th July 2022 was ever served on the respondents. Without proof of service, it would be unjust to consider granting orders against the respondents, as they have not had a fair hearing. Service of court process is a cardinal requirement for a fair hearing and due process. The court therefore directed the ex parte applicants to comply with the previous directions to serve the application before any further steps could be taken in the matter.
Court Disposition
Application not considered; applicants directed to effect service before further steps.
Orders
- Ex parte applicants to comply with the court's directions of 20th July 2022 and serve the application before any further step is taken.
Full Case Text
Judgment text and source record
41 paragraphs
Republic v Office of the Director of Public Prosecutions & 2 others; Malala & 7 others (Interested Parties) (Judicial Review Application E003 of 2022) [2023] KEHC 2772 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2772 (KLR)
Republic of Kenya
In the High Court at Kakamega
Judicial Review Application E003 of 2022
WM Musyoka, J
March 24, 2023
Between
Republic
Applicant
and
Office of the Director of Public Prosecutions
1st Respondent
Director of Criminal Investigations
2nd Respondent
Attorney-General
3rd Respondent
and
Cleophas Wakhungu Malala
Interested Party
Joel Wekesa Barasa
Interested Party
Marvin Kombo Omani
Interested Party
Ababu Shargo Borcherd
Interested Party
Cecil Ambeyi Muyuka
Interested Party
Joyce Kavere Abachi
Interested Party
Hakim Juma Ambani
Interested Party
Shakila Amboye Owingwa
Interested Party
Ruling
1. The application that am tasked with determining is dated 18th July 2018. It seeks, in the main, provision of certain documents to the ex parte applicants, by the respondents, to facilitate prosecution of their case.
2. The said application was before me on 20th July 2022, when I was informed, by the ex parte applicants, that they had not served it, whereupon I directed that the same be served, and it be canvassed by way of written submissions. I fixed it for mention on 24th October 2022, ostensibly to confirm service, and filing of replies and submissions, and allocation of a date for ruling. When the matter was mentioned on 24th October 2022, I was informed that service had been done, and I allocated a date for ruling, 3rd February 2023.
3. I am unable to prepare the ruling, for I have established, from the record, that there is no evidence that the application, dated 18th July 2022, was ever served on the respondents, the persons or entities who or that are supposed to supply the documents sought in that application. There is no affidavit of service to evidence service of the said application. All I see on record is a mention notice, placed in the record without an affidavit, and it relates to the mention scheduled for 24th October 2022. It bears a receipt stamp by the 2nd respondent, but not the other respondents.
4. As the respondents have never been served with the application that I am meant to write a ruling on, it would not be just to consider granting orders against them, when they have not had a fair hearing. Service of court process is cardinal to a fair hearing.
5. Let the ex parte applicants comply with my directions of 20th July 2022, before any further step can be taken in the matter. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 24THDAY OF MARCH 2023WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Dr. Malalah, instructed by Malalah & Company, Advocates for theex parte applicants.