[2011] KEHC 2893 (KLR)
The court found that the plaintiffs, as administrators of the estate and residents of New Hampshire, USA, had demonstrated sufficient difficulty in attending court in Kenya for formal proof. The application was properly served on the defendant by substituted service, and no appearance or opposition was filed. The...
Source-derived case information.
- Citation
- [2011] KEHC 2893 (KLR)
- Parties
- Plaintiff: Stephen T. Roy; Plaintiff: Margot P. Roy; Defendant: Caleb Okechi Otwili
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 427 of 2007
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Commission to Examine Plaintiffs Outside Jurisdiction
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Commission for Examination, Witness Outside Jurisdiction, Service of Process, Unopposed Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen T. Roy
Plaintiff
Margot P. Roy
Plaintiff
Caleb Okechi Otwili
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Commission to Examine Plaintiffs Outside Jurisdiction
Legal Issues
- 1 Whether the court should issue a commission for the examination of plaintiffs residing outside its jurisdiction.
- 2 Whether the application is properly served and unopposed.
Ratio Decidendi
The court found that the plaintiffs, as administrators of the estate and residents of New Hampshire, USA, had demonstrated sufficient difficulty in attending court in Kenya for formal proof. The application was properly served on the defendant by substituted service, and no appearance or opposition was filed. The court exercised its discretion under Order 27 Rule 4(1) of the Civil Procedure Rules to issue a commission for the examination of the plaintiffs outside its jurisdiction, appointing Mr. Michael Churbrich Esq. as commissioner. The orders were granted in the interests of justice, with costs in the cause.
Court Disposition
application allowed
Orders
- A commission for the examination of the plaintiffs resident outside the court’s jurisdiction is hereby issued.
- The commission is issued to Mr. Michael Churbrich Esq.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NUMBER 427 OF 2007
STEPHEN T. ROY......................................................................................1ST PLAINTIFF
MARGOT P. ROY. ....................................................................................2ND PLAINTIFF
VERSUS
CALEB OKECHI OTWILI...............................................................................DEFENDANT
R U L I N G
This is a Notice of Motion filed under Order 27Rule 4(1) (a) and Order 50 Rule 1 of the Civil Procedure Rules (Cap 21). It was dated 12th November, 2009 and filed on behalf of STEPHEN T. ROY and MARGOT P. ROY (suing as administrators of the estate of JESSICA LINDSEY ROY).
The prayers in the application are as follows:-
1. THAT this Honourable court be pleased to issue a commission for the examination of the plaintiffs who are resident outside this Honourable Court’s jurisdiction.
2. THAT the commission aforesaid be issued to Mr. Michael Churbrich Esq.
3. THAT the cots of this application be in the cause.
The application has grounds on the face of the Notice of Motion. It was filed with a supporting affidavit sworn on 12th November, 2009 by MARGOT P. ROY.
When the application came up for hearing on 4th February, 2011, Mr. Mbaluto who appeared for the applicants informed me that the defendant CALEB OKECHI OTWILI was not present and had never entered appearance.
Indeed, I see from documents filed herein that service on the defendant was done through substituted method of advertisement in the Daily Nation Newspaper on 15th November, 2009. No appearance was filed however by the defendant.
Under Order 27 Rule 4(1) of the Civil Procedure Rules, this court has jurisdiction to issue a commission for the examination of a witness outside jurisdiction. I am informed that the plaintiffs herein are residents of New Hampshire USA. They have found it difficult to travel to Kenya for formal proof evidence in this case. The application, is not opposed. A suitable commissioner has been identified. I will therefore, allow the application in the interests of justice.
For the above reasons, I allow the application and order as follows: -
1. A Commission for the examination of the plaintiffs who are resident outside this court’s jurisdiction is hereby issued.
2. The commission aforesaid is issued to Mr. Michael Churbrich Esq.
3. Costs in the cause.
Dated and delivered at Nairobi this 7th day of March, 2011.
…………………
GEORGE DULU
JUDGE
In the presence
Mr. Mbaluto for plaintiffs
C Muendo – court clerk