[2012] KEHC 5770 (KLR)
The court found that the orders of 11th February, 2011 were made ex parte based on an affidavit of service and a public auction process that are now being questioned by the applicant. The respondents failed to address the substantive issues raised, focusing instead on technical objections regarding representation....
Source-derived case information.
- Citation
- [2012] KEHC 5770 (KLR)
- Parties
- Applicant: Rosemary Wamuyu Wachira; Respondent: Francis Ndegwa; Respondent: George Odhiambo; Respondent: Grace Wanjiku Kimani; Respondent: Peter Irungu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 409 of 1999
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- Application allowed; ex parte orders set aside.
- Judges
- SP Ouko
- Legal Topics
- Setting Aside Ex Parte Orders, Service of Process, Public Auction Procedure, Land Transfer Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Wamuyu Wachira
Applicant
Francis Ndegwa
Respondent
George Odhiambo
Respondent
Grace Wanjiku Kimani
Respondent
Peter Irungu
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders made on 11th February, 2011 should be set aside to allow inter partes hearing of the application dated 21st July, 2010.
- 2 Whether the applicant was properly served with the application leading to the ex parte orders.
- 3 Whether the applicant's counsel is properly on record after judgment without leave.
Ratio Decidendi
The court found that the orders of 11th February, 2011 were made ex parte based on an affidavit of service and a public auction process that are now being questioned by the applicant. The respondents failed to address the substantive issues raised, focusing instead on technical objections regarding representation. Given the gravity of the dispute, which involves land, and the need to do justice, the court exercised its discretion to set aside the ex parte orders to allow the application dated 21st July, 2010 to be heard inter partes. The applicant was granted an opportunity to file and serve a replying affidavit, and the matter was ordered to be set down for hearing on a priority basis.
Court Disposition
Application allowed; ex parte orders set aside.
Orders
- Orders made on 11th February, 2011 are set aside with costs to the respondents.
- Application dated 21st July, 2010 to be set down for hearing on a priority basis before the end of next court term.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAKURU
Civil Case 409 of 1999
ROSEMARY WAMUYU WACHIRA..................................................................PLAINTIFF/APPLICANT
VERSUS
FRANCIS NDEGWA.................................................................................1ST DEFENDANT/RESPONDENT
GEORGE ODHIAMBO.............................................................................2ND DEFENDANT/RESPONDENT
GRACE WANJIKU KIMANI....................................................................3RD DEFENDANT/RESPONDENT
PETER IRUNGU.......................................................................................4TH DEFENDANT/RESPONDENT
RULING
On 11th February, 2011, I delivered a ruling in which I ordered the Registrar of this court to execute all the relevant transfer documents to facilitate and give effect to the sale by public auction of the applicant’s parcel of land No.SUBUKIA/SUBUKIA/BLOCK 13/50 to the respondents.
The applicant in the instant application prays that those orders be set aside so that the motion dated 21st July, 2010 be heard inter partes. The applicant contends that the said motion dated 21st July, 2010 was not served upon her and the affidavit of service is false; that the transfer form is not dated; that the alleged public auction appears to have been conducted on 20th October, 2009, a public holiday; that the sale of the suit property was stayed on 20th January, 2009; and that the applicant has filed Civil Appeal No.73 of 2006 in the Court of Appeal.
The respondents’ counsel filed a notice of preliminary objection in which it is submitted that the stay orders lapsed and that the present counsel representing the applicant is irregularly on record having come on record after judgment without leave.
The applicant wishes that she be given an opportunity to defend the application dated 21st July, 2010 in which this court ordered the Deputy Registrar to execute transfer documents in respect of SUBUKIA/SIBUKIA BLOCK 13/50 KIANWE.
The court has unlimited discretion to set aside its orders, the only consideration being to do justice to the parties. The orders of 11th February, 2011 were made ex parte on the basis of an affidavit of service and a public auction which is being questioned.
The respondents have not responded to those issues but instead have raised a technical issue regarding representation. On the basis of the two issues raised in this application and bearing in mind that the dispute involves land, I will allow the application and order that the orders made on 11th February, 2011 be and are hereby set aside with costs to the respondents.
Application dated 21st July, 2010 be set down for hearing on a priority basis before the end of next court term. The applicant to file/serve replying affidavit within 14 days from the date hereof.
Dated, Signed and Delivered at Nakuru this 31st July, 2012.
W. OUKO
JUDGE