[2024] KEELC 1695 (KLR)
The court found that although the Plaintiff claimed to have served the Defendants' new advocates via email, there was no affidavit of service on record to confirm this. In the interest of fairness and upholding the right to be heard, the court determined that the Defendants should be given an opportunity to file and...
Source-derived case information.
- Citation
- [2024] KEELC 1695 (KLR)
- Parties
- Plaintiff: Fmaily Shade Africa Limited; Defendant: James Gitau Mukuria; Defendant: Jane Wanjiku Gitau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 100 of 2020
- Procedural Posture
- Environment and Land Case / Ruling on Application for Review and Leave to File Replying Affidavit
- Outcome
- Application allowed; previous orders set aside; leave granted to Defendants to file replying affidavit; matter to be heard afresh; each party to bear own costs.
- Judges
- EK Wabwoto
- Legal Topics
- Review of Court Orders, Service of Process, Right to Fair Hearing, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fmaily Shade Africa Limited
Plaintiff
James Gitau Mukuria
Defendant
Jane Wanjiku Gitau
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Review and Leave to File Replying Affidavit
Legal Issues
- 1 Whether the Defendants have met the threshold for review of the orders granted on 24th January 2024.
- 2 Whether the Defendants should be granted leave to file and serve their replying affidavit out of time.
- 3 Whether the orders issued ex parte should be set aside to allow the Defendants to be heard.
Ratio Decidendi
The court found that although the Plaintiff claimed to have served the Defendants' new advocates via email, there was no affidavit of service on record to confirm this. In the interest of fairness and upholding the right to be heard, the court determined that the Defendants should be given an opportunity to file and serve their replying affidavit. Consequently, the orders issued on 24th January 2024 were set aside, and directions were given for the matter to be heard afresh, with each party bearing its own costs for the application.
Court Disposition
Application allowed; previous orders set aside; leave granted to Defendants to file replying affidavit; matter to be heard afresh; each party to bear own costs.
Orders
- The court's orders issued on 24th January 2024 with regards to the application dated 15th December 2023 are set aside.
- The 1st and 2nd Defendants are granted leave to file and serve their replying affidavit within 7 days of delivery of this ruling.
Full Case Text
Judgment text and source record
26 paragraphs
Fmaily Shade Africa Limited v Mukuria & another (Environment & Land Case 100 of 2020) [2024] KEELC 1695 (KLR) (5 April 2024) (Ruling)
Neutral citation: [2024] KEELC 1695 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 100 of 2020
EK Wabwoto, J
April 5, 2024
Between
Fmaily Shade Africa Limited
Plaintiff
and
James Gitau Mukuria
1st Defendant
Jane Wanjiku Gitau
2nd Defendant
Ruling
1. The Defendants moved the Court vide a Notice of Motion Application dated 25th January 2024, accompanied by a supporting affidavit sworn by James Gitau Mukuria seeking the following orders:i.Spent.ii.That the Honourable Court be pleased to review orders granted to the Plaintiff’s application dated 15th December 2023. iii.That this Honourable Court do grant the 1st and 2nd Defendants leave to file and serve their Replying affidavit.iv.That costs be in the cause.
2. The Application was premised on Order 45 of the Civil Procedure Rules, Section 1A,1B,3A of the Civil Procedure Act and made on five grounds;i.The Plaintiff filed an application dated 15th December under a certificate of urgency.ii.The Plaintiff served the application and order to the Defendants on 19th January 2024. iii.The Application was to come up for hearing on 24th January 2024. iv.The Defendants’ advocate attended the hearing on the said date however she could not be heard.v.The application was allowed without the Defendants being heard.
3. The Defendants filed submissions dated 16th February 2024 in which they submitted that there was an apparent error, specifically in relation to the issue of service that had led to granting of the said orders. Additionally, it was submitted that there was a misrepresentation by the Plaintiff’s advocate and on the Defendants’ advocate had logged in but faced technical challenges. It was argued that since an apparent error had been proven, they were entitled to the orders sought.
4. The Plaintiff opposed the application vide a replying affidavit dated 31st January 2024 sworn by William Murethi and submissions dated 22nd February 2024. It was argued that service of the Application was duly effected vide separate emails on 20th December 2023 and 19th January 2024, therefore the Defendants had at least two working days 22nd & 23rd January 2024 to respond to the application which they never did nor protested the service.
5. It was also argued that the Defendants stands to be prejudiced since the Honourable Court entered judgement in favour of the Plaintiff on 30th August 2023 which included an eviction order against the Defendants and since then the ninety-day stay had lapsed on 30th November 2023. It was further argued that the Respondent had not provided the Court with any reasonable justification on why they have not vacated the suit premise to date.
6. I have considered the application, evidence and written submissions filed by the parties. In my view, the issue that arises for determination is whether Defendants application has met the threshold for grant of the orders sought.
7. I have scrutinized the Court records which confirms that a Notice of Change of Advocates on behalf of the Defendants was filed by the firm of Achach & Associates Advocates LLP on 23rd November 2023. The record further confirms that the Plaintiff served the application dated 15th December and Court order dated 18th December 2023 via email to owuochadvocates@gmail.com (being the Defendants’ prior advocates) on 20th December 2023.
8. The Plaintiff argued that they later served the Respondent via a different email- info@achachllp.co.ke. on 19th January 2024. However, the Court has not found any such affidavit of service on record. It is therefore prudent in the spirit of upholding fairness and right to fair hearing to accord the Defendants an opportunity to defend themselves.
9. In the foregoing, this Court finds that the Notice of Motion application dated 25th January 2024 is merited and will proceed to allow the same in the following terms:i.This Court’s orders issued on 24th January 2024 with regards to the application dated 15th December 2023 are hereby set aside.ii.The 1st and 2nd Defendants are hereby granted leave to file and serve their Replying affidavit within 7 days of delivery of this ruling.iii.The Plaintiff is granted leave of 7 days to file further affidavit if necessary.iv.The Notice of Motion Application dated 15th December 2023 shall be set down for hearing afresh.v.Each party shall bear own costs of this application.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF APRIL 2024. E. K. WABWOTOJUDGEIn the presence of: -Mr. Masinde for the Plaintiff.Ms. Kariuki for the Defendants.Court Assistant; Caroline Nafuna.