[2017] KEELC 984 (KLR)
The court found that the Defendant was not properly served with the application dated 25th March, 2016, as service was effected upon a firm that was not the Defendant's advocates on record at the material time. Consequently, the proceedings of 4th April, 2017, which were conducted in the absence of the Defendant,...
Source-derived case information.
- Citation
- [2017] KEELC 984 (KLR)
- Parties
- Plaintiff: Iddi Shabaan Oniale; Defendant: David Kimani Chege
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 704 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Service and Setting Aside Proceedings
- Outcome
- proceedings set aside; application to be served afresh
- Legal Topics
- Service of Process, Setting Aside Proceedings, Inherent Jurisdiction, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iddi Shabaan Oniale
Plaintiff
David Kimani Chege
Defendant
Procedural Posture
Notice of Motion / Ruling on Service and Setting Aside Proceedings
Legal Issues
- 1 Whether the Defendant was properly served with the application dated 25th March, 2016.
- 2 Whether the proceedings of 4th April, 2017 conducted in the absence of the Defendant were regular.
- 3 Whether the court should exercise its inherent power to set aside the proceedings and direct fresh hearing.
Ratio Decidendi
The court found that the Defendant was not properly served with the application dated 25th March, 2016, as service was effected upon a firm that was not the Defendant's advocates on record at the material time. Consequently, the proceedings of 4th April, 2017, which were conducted in the absence of the Defendant, were irregular. In the exercise of its inherent jurisdiction under section 3A of the Civil Procedure Act, the court set aside those proceedings and directed that the application be served afresh upon the Defendant's current advocates for a new hearing date to be fixed by the court.
Court Disposition
proceedings set aside; application to be served afresh
Orders
- The proceedings of 4th April, 2017 are set aside.
- The application dated 25th March, 2016 shall be served upon the Defendant's advocates on record.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC NO. 704 OF 2013
IDDI SHABAAN ONIALE…..…………….PLAINTIFF
VERSUS
DAVID KIMANI CHEGE……………..…DEFENDANT
RULING
I heard the Plaintiff’s Notice of Motion application dated 25th March, 2016 on 4th April, 2017 and deferred the ruling to 3rd November, 2017. The application was heard in the absence of the Defendant. The Plaintiff’s advocate Mr. Abdulhakim informed the court that he had served the application upon the Defendant’s advocates on record and that the said advocates had not opposed the application.
When perusing the file for the purposes of preparing the ruling, I noted that the advocates on record for the Defendant who filed a notice of appointment of advocates and a statement of defence on behalf of the Defendant is Wamuyu Omungala & Company Advocates. I have noted from the application dated 25th March, 2016 that the said application was served upon the firm of Wairegi Gatetua & Associates Advocates on 17th May, 2016. The affidavit of service sworn by Hendricus Odongo on 23rd March, 2017 on the basis of which I was persuaded to hear the said application in the absence of the Defendant also shows that a hearing notice for the said application was served upon the firm of Wairegi Gatetua & Associates on 23rd February, 2017. There is evidence on record that the Defendant changed his advocates from Wamuyu Omung’ala & Company Advocates to Wairegi Gatetua & Associates Advocates.
For the foregoing reasons, I have concluded that the Defendant was not served with the application dated 25th March, 2016 and as such the proceedings which took place before the court on 4th April, 2017 in the absence of the Defendant were irregular. In exercise of this courts inherent power under section 3A of the Civil Procedure Act, I hereby set aside the proceedings of 4th April, 2017 and direct that the application dated 25th March 2016 be served upon the Defendants’ advocates on record for hearing afresh on a date to be fixed by the court.
Delivered and signed at Nairobi this 3rd November, 2017
S. OKONG’O
JUDGE
Ruling read in open court in the presence of:
No appearance for the Plaintiff
Ms. Waweru for the Defendant
Kajuju Court Assistant