[2021] KEELC 3473 (KLR)
The court found that the Applicant was not served with the application that led to the ex-parte orders of 22nd October 2019, thereby violating his right to be heard as guaranteed by the Constitution. The Respondents, having misunderstood the scope of the ex-parte orders, proceeded to construct a permanent wall...
Source-derived case information.
- Citation
- [2021] KEELC 3473 (KLR)
- Parties
- Plaintiff: Bishop Geofrey Mutheca Gitau; Plaintiff: Bishop Eli Rop; Plaintiff: Full Gospel Churches of Kenya; Defendant: Hon. Okoth Ocholla; Defendant: The Attorney General; Defendant: Rev Stephen Mbogo Njue
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 171 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application allowed; ex-parte orders set aside
- Legal Topics
- Ex Parte Orders, Service of Process, Right to Be Heard, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bishop Geofrey Mutheca Gitau
Plaintiff
Bishop Eli Rop
Plaintiff
Full Gospel Churches of Kenya
Plaintiff
Hon. Okoth Ocholla
Defendant
The Attorney General
Defendant
Rev Stephen Mbogo Njue
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex-parte orders granted on 22nd October 2019 should be set aside due to lack of service on the Applicant.
- 2 Whether the Respondents breached the terms of the ex-parte order by constructing a permanent wall instead of a temporary fence.
- 3 Whether the Applicant's right to be heard was infringed.
Ratio Decidendi
The court found that the Applicant was not served with the application that led to the ex-parte orders of 22nd October 2019, thereby violating his right to be heard as guaranteed by the Constitution. The Respondents, having misunderstood the scope of the ex-parte orders, proceeded to construct a permanent wall instead of a temporary fence, which was a clear breach of the court's directive. The absence of opposition from the Respondents further supported the Applicant's case. Consequently, the court held that the ex-parte orders were improperly obtained and executed, warranting their setting aside in entirety to preserve the integrity of the judicial process and protect the parties' rights.
Court Disposition
application allowed; ex-parte orders set aside
Orders
- The orders of 22nd October 2019 are hereby set aside in their entirety.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC NO. 171 OF 2018
BISHOP GEOFREY MUTHECA GITAU
BISHOP ELI ROP SUING TRUSTEES OF
FULL GOSPEL CHURCHES OF KENYA.............................PLAINTIFFS
=VERSUS=
HON.OKOTH OCHOLLA.............................................1ST DEFENDANT
THE ATTORNEY GENERAL............................................2ND DEFENDANT
REV STEPHEN MBOGO NJUE.....................................3RD DEFENDANT
RULING
1. This is a ruling in respect of a notice of motion dated 22nd October 2020 in which the 3rd Defendant/Applicant seeks that the orders of the court which were given on 22nd October 2019 be set aside. The Applicant contends that he was not served with the application which resulted in the said orders and that therefore his constitutional right to be heard was infringed.
2. The Applicant argues that the Respondents have used the orders obtained on 22nd October 2019 to construct a permanent perimeter fence which has encompassed plots belonging to the Applicant as well as the other church members. The Applicant contends that though the Respondents obtained the orders on 22nd October 2019, the orders were not served upon him until 15th October 2020.
3. Though the Respondents were served with the application, they neither filed grounds of opposition nor replying affidavit. The Application which resulted in the impugned orders was placed before me on 22nd October 2019 in chambers. Owing to the issues of vandalism of church properties which had no fence, I granted ex-parte orders allowing the Respondents to put up a temporary fence to secure the church properties pending hearing of the application. It is apparent that the Respondent misunderstood the ex-parte orders and proceeded as if the entire application had been allowed. There was no way such an application would have been determined ex-parte in the absence of the Applicant and the Respondents.
4. It is clear from the photographs annexed to the supporting affidavit that the Respondents are putting up a permanent wall. This is in clear breach of the order which allowed them to put up a temporary fence. I therefore find that the Applicant’s application is well founded. I allow the same with the results that the orders of 22nd October 2019 are hereby set aside in their entirety. There shall be no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 15TH DAY OF MARCH 2021.
E.O.OBAGA
JUDGE
In the Virtual presence of:-
Mr. Ochich for the 3rd Defendant/Applicant
M/s Fatma for 2nd Defendant
Court Assistant: Hilda
E.O.OBAGA
JUDGE