This is an application by the respondent for judicial review seeking an order of the court to quash the ruling/orders of the circuit court (8) dated November 3, 2022. The instant application is brought under order 55 of the High Court (Civil Procedure) Rules, 2004 (C.I) 47.
Before setting down the issues for determination, I will give a brief history of the case. The petitioner filed a petition against the respondent on the 6th May 2022 at the circuit court. After several unsuccessful attempts to serve the respondent the petitioner applied to the circuit court for substituted service, the court granted same. Among the places where the posting was done was the court’s notice board and the last place of abode of the respondent.
The respondent’s father, saw the process on the wall and aggrieved by same he filed an application praying the circuit court to set aside the service of the process via posting. According to him the petitioner is aware the respondent has been resident out of the jurisdiction for a long time and believes that the order for substituted service was obtained by fraud.
The circuit court dismissed the application on grounds of capacity. In her ruling she stated that lack of capacity deprives a court of its jurisdiction.
It is this statement by the circuit court judge which the applicant is relying on in this application. The applicant’s position is that the circuit court,
erred in law when she declined jurisdiction to decide on the question of fraud.
erred when she held that constructive notice amounts to proper service, which error goes to the court’s jurisdiction.
The petitioner /respondent is opposed to the application. It is his case that the circuit court judge did not state in the judgment that she was declining jurisdiction. The respondent finds no error committed by the circuit court in her ruling. It is his case that the applicant failed to satisfy the grounds under which a court would grant an order of certiorari and prohibition.
The respondent says the issue of jurisdiction was not before the circuit court judge for determination. Counsel for the respondent argued that even if the circuit court erred in ruling that the application must fail because. Applicant did not have the locus standi, he believes does not affect the court’s jurisdiction and applicant’s remedy lies in an appeal. Counsel further submitted that the circuit court judge had jurisdiction over the divorce petition. The applicant believes that the applicatio
