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KadhiAllowedHCCA No. 24 of 2018· [2018] KEKC 39 (KLR)

In re Estate Juma Hamisi Kombo (Deceased) [2018] KEKC 39 (KLR)

High Court of Kenya
9 July 2018
POP.J.O. Otieno
141 words in judgment
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The bottom line

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The High Court in Mombasa set aside eviction orders made without hearing the other side, restarting the process fairly.

What this practically means

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Executive summary

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In a short ruling delivered at Mombasa on 9 July 2018, P.J.O. Otieno J exercised the High Court's supervisory jurisdiction under Article 165(6) of the Constitution over a matter arising from HCCA No. 24 of 2018. Having read the file and, in particular, the orders issued on 4 June 2018, the judge found no evidence that the other parties in the dispute had been notified and given a chance to be heard before those orders were issued. On that basis the proceedings of 4 June 2018 were set aside. The trial court was then directed to serve a notice upon the parties to the dispute to enable it determine two questions: whether Zubeda Mohamed Swaleh needed to be evicted, and whether she should render accounts of any rent allegedly received on account of the premises in dispute. The ruling essentially remedies a breach of natural justice - the audi alteram partem rule - at first instance and remits the matter for determination after proper service and hearing. The judgment does not name the parties, cite any authorities or statutes beyond Article 165(6), or make any order as to costs.

Key legal issues

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01

Whether the orders of 4/6/2018 were properly issued

Holding

The orders were improperly issued because the other parties were not notified or heard; they were set aside and the trial court directed to serve notice on all parties

Reasoning

The court invoked its supervisory jurisdiction under Article 165(6) after reading the file and the orders of 4/6/2018. Finding no evidence that the other parties to the dispute were notified or given an opportunity to be heard before the orders issued, it held the proceedings offended natural justice, set them aside and remitted the matter for service of notice on the parties before any eviction or accounts decision.

p. 2

Legal principles established

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  • Ex parte orders cannot issue where other parties in the dispute were not notified and given a chance to be heard

Court orders

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  1. 1.The proceedings of 4/6/2018 are set aside
  2. 2.The trial court is directed to serve a notice upon the parties to the dispute to enable it determine the need to have one Zubeda Mohamed Swaleh evicted and for her to render accounts of any rent allegedly received on account of the premises in dispute
Jurisdiction invoked
Article 165(6) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate Juma Hamisi Kombo (Deceased) [2018] KEKC 39 (KLR)", Case Analysis (2018). HCCA No. 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/39/eng@2018-07-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.