[2010] KEHC 1266 (KLR)
The court found that the affidavit of service was deficient because it failed to specify the names of the directors allegedly served, rendering the service ineffective. The defendant's denial of service and the lack of clarity regarding the location of the defendant's offices further undermined the validity of...
Source-derived case information.
- Citation
- [2010] KEHC 1266 (KLR)
- Parties
- Plaintiff: Benard Mwangi Nderitu; Plaintiff: Hesbon Omondi; Plaintiff: Francis Rumano; Plaintiff: Peter Wambugu; Plaintiff: Stephen Kamau; Plaintiff: Mary Wambu; Defendant: Ndiara Enterprises Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2010
- Procedural Posture
- Environmental and Land Case / Ruling on Application to Set Aside Ex Parte Injunction
- Outcome
- Application to set aside ex parte orders allowed; ex parte injunction set aside; costs to the defendant.
- Legal Topics
- Service of Process, Interlocutory Injunctions, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Mwangi Nderitu
Plaintiff
Hesbon Omondi
Plaintiff
Francis Rumano
Plaintiff
Peter Wambugu
Plaintiff
Stephen Kamau
Plaintiff
Mary Wambu
Plaintiff
Ndiara Enterprises Ltd
Defendant
Procedural Posture
Environmental and Land Case / Ruling on Application to Set Aside Ex Parte Injunction
Legal Issues
- 1 Whether service of the application for injunction on the defendant was properly effected.
- 2 Whether the ex parte orders granted on 19th March, 2010 should be set aside for lack of proper service.
- 3 Whether a permanent injunction can be granted at the interlocutory stage.
Ratio Decidendi
The court found that the affidavit of service was deficient because it failed to specify the names of the directors allegedly served, rendering the service ineffective. The defendant's denial of service and the lack of clarity regarding the location of the defendant's offices further undermined the validity of service. As a result, the ex parte orders granted on 19th March, 2010 were irregular for want of proper service and were set aside. The court emphasized that a party must be given an opportunity to be heard before adverse orders are made against them. The court also clarified that a permanent injunction cannot ordinarily be granted at the interlocutory stage, and that the defendant,...
Court Disposition
Application to set aside ex parte orders allowed; ex parte injunction set aside; costs to the defendant.
Orders
- The ex parte orders granted on 19th March, 2010 are set aside.
- Costs of the application shall be paid by the plaintiffs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Environmental & Land Case 5 of 2010
BENARD MWANGI NDERITU …..1ST PLAINTIFF/RESPONDENT
HESBON OMONDI ……………….2ND PLAINTIFF/RESPONDENT
FRANCIS RUMANO ……………….3RD PLAINTIFF/RESPONDENT
PETER WAMBUGU ……………….4TH PLAINTIFF/RESPONDENT
STEPHEN KAMAU ………………..5TH PLAINTIFF/RESPONDENT
MARY WAMBU ……………………6TH PLAINTIFF/RESPONDENT
V E R S U S
NDIARA ENTERPRISES LTD ……..DEFENDANT/RESPONDENT
R U L I N G
On 19th March, 2010 Justice Sitati granted the Plaintiffs’ application filed on 26th January, 2010 under Sections 3A and 63(c) and (e) of the Civil Procedure Act and Order 39 rules 1,2, and 9 of the Civil Procedure Rulesfor a permanent injunction to restrain the Defendant, its servants, employees and his agents from entering the Plaintiffs from the parcel of land known as LR.No.209/9613 or demolishing or fencing in the Plaintiffs’ buildings or interfering with the Plaintiffs’ possession of the same, alienating, transferring, disposing off or dealing with the said suit land pending the hearing and determination of the suit.The application was heard ex parte on the basis that the Defendant had been served but had not filed any response.
The affidavit of service filed on 4th February, 2010 and dated the previous day shows that when the process server received the application on 27th January, 2010 he was accompanied by the 1st Plaintiff toRuiruTownwhere the Defendant’s offices are situated at plot No.17B/4 and met a lady called Lucy.After introduction, Lucy rung one of the Directors of the Defendant on a mobile phone following which the process server and 1st Plaintiff were requested to go to NACICO Chambers where they went and met the two directors whom the process server knew as he had served them in an earlier matter.He tendered the documents to them but they declined to sign.
It is clear from the affidavit that the names of the said two directors were not indicated.Service cannot be effective where the identity of the person being served is not indicated.
Wilson Nguithi Mugo is the Managing Director of the Defendant Company.He denied service.The other Director is William Kiragu Nguthi.He also denied service.Wilsondenied that the company has operational offices at plot No.17B/4 Ruiru.The process server did not state that this is the Defendant’s registered office.Wilsonstated that he has been unwell for several years and that on 8th January, 2010 he was at his residence at Thika. The date of service, according to the process server, was on 27th January, 2010.
Without service, the orders granted on 19th March, 2010 were irregular and are hereby set aside as a matter of course.The Defendant, being the party aggrieved, was not accorded the opportunity to be heard on the application.
I do not want to say that a permanent injunction cannot be granted at this interlocutory stage of the dispute.
The Defendant sought interlocutory injunction.There would be no basis in law for such an order as it has no suit or counterclaim against the Plaintiffs.
The application is allowed to that limited extend.Costs shall be paid by the Plaintiffs.
DATED AND DELIVERED AT
NAIROBI
THIS 29th DAY OF SEPTEMBER 2010
A.O. MUCHELULE
J U D G E