David Kimutai t/a Dajema Investments v Victor Osinde Bosire [2020] eKLR Case Summary

Court
High Court of Kenya at Eldoret
Category
Civil
Judge(s)
H.A. Omondi
Judgment Date
May 22, 2020
Country
Kenya
Document Type
PDF
Number of Pages
2
Explore the case summary of David Kimutai t/a Dajema Investments v Victor Osinde Bosire [2020] eKLR, highlighting key legal insights and outcomes for better understanding of this important ruling.

Case Brief: David Kimutai t/a Dajema Investments v Victor Osinde Bosire [2020] eKLR

1. Case Information:
- Name of the Case: David Kimutai T/A Dajema Investments v. Victor Osinde Bosire
- Case Number: Civil Appeal No. 96 of 2015
- Court: High Court of Kenya at Eldoret
- Date Delivered: 22nd May 2020
- Category of Law: Civil
- Judge(s): H.A. Omondi
- Country: Kenya

2. Questions Presented:
The court must resolve whether the orders issued on 24th October 2019 should be vacated and if the applicant, Victor Osinde Bosire, should be granted leave to respond to the application dated 17th September 2019, which was heard ex parte.

3. Facts of the Case:
The appellant, David Kimutai, and the respondent, Victor Osinde Bosire, were engaged in a civil matter where the respondent sought to challenge orders that had been issued against him. The respondent was served with an application dated 17th September 2019, which indicated a hearing date of 28th September 2019—a Saturday when the court was not in session. The respondent proceeded to court on 25th September 2019 without notifying the applicant, leading to an ex parte hearing and adverse orders against the applicant.

4. Procedural History:
The applicant filed an application on 28th October 2019 to set aside the orders issued on 24th October 2019, arguing that he was condemned unheard due to improper service and misleading information regarding the hearing date. The respondent opposed this application, asserting that the applicant had been duly served and failed to respond in time. The matter progressed with the court considering the applicant’s claims of procedural unfairness and the implications of the respondent's actions.

5. Analysis:
- Rules: The court considered the principles of natural justice, particularly the right to be heard, and the procedural rules regarding service and response to applications as outlined in Order 51 Rule 14 of the Civil Procedure Rules.
- Case Law: The court referenced *Shah v. Mbogo* [1967] EA, which established that a party may seek to set aside orders if they were not properly served or if they failed to appear due to sufficient cause. The court also cited *Patel v. E.A. Cargo Handling Services* (1974) EA 75, emphasizing the duty of the court to ensure justice is served to all parties.
- Application: The court found that the applicant's failure to appear was due to the misleading hearing date provided by the respondent. The court determined that the respondent's actions constituted an attempt to obstruct justice and that the applicant had sufficient cause for his absence. Therefore, the orders issued on 24th October 2019 were set aside, and the applicant was granted the opportunity to respond to the application.

6. Conclusion:
The court ruled in favor of the applicant, setting aside the orders issued on 24th October 2019, and allowing the applicant to respond to the application dated 17th September 2019. The decision underscored the importance of fair procedural practices in legal proceedings and the court's commitment to ensuring that all parties have the opportunity to be heard.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The High Court of Kenya ruled in favor of Victor Osinde Bosire, setting aside previous orders that had been issued without shis participation. The case highlights the critical importance of proper service and the right to be heard in civil proceedings, reinforcing the court's role in maintaining fairness and justice in legal processes.

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