[2019] KEELC 1709 (KLR)
The court found that although the process server was duly licensed and had attempted personal service on the applicant, the proper procedure required that service be effected upon the applicant's counsel, not the applicant personally, since the applicant was represented. The failure to serve the applicant's counsel...
Source-derived case information.
- Citation
- [2019] KEELC 1709 (KLR)
- Parties
- Applicant: Julius Oniango Etole; Respondent: Moses Onyango Adigo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 826 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Ruling
- Outcome
- application allowed
- Judges
- TM Olando
- Legal Topics
- Service of Process, Setting Aside Ex Parte Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Oniango Etole
Applicant
Moses Onyango Adigo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Ruling
Legal Issues
- 1 Whether the applicant was properly served with the application for stay of execution.
- 2 Whether the process server was duly licensed to effect service.
- 3 Whether failure to serve the applicant's counsel invalidated the service and justified setting aside the ex parte ruling.
Ratio Decidendi
The court found that although the process server was duly licensed and had attempted personal service on the applicant, the proper procedure required that service be effected upon the applicant's counsel, not the applicant personally, since the applicant was represented. The failure to serve the applicant's counsel constituted a procedural irregularity significant enough to warrant setting aside the ex parte ruling. The court emphasized that adherence to proper service procedures is fundamental to ensuring fairness and the right to be heard. Consequently, the application to set aside the ex parte ruling was allowed.
Court Disposition
application allowed
Orders
- The ex parte ruling made on 9/4/2019 is set aside.
- The application is allowed due to improper service on the applicant's counsel.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC 826 OF 2015
(FORMERLY HCCC CASE NO. 163 OF 2009)
JULIUS ONIANGO ETOLE......................................................PLAINTIFF
VERSUS
MOSES ONYANGO ADIGO.................................................DEFENDANT
RULING
1. Julius Oniango Etole hereinafter referred to as the applicant has come to court vide notice of motion dated 3/5/2019 seeking orders that the exparte ruling made by the court on the 9/4/2019 is set aside on the grounds that:-
a) That he was at home throughout on 28th March 2019 as he was ailing but did not see the process server.
b) That the process server could not serve me since he had no license for the year 2019 to enable him to do so.
c) That the plaintiff was not given the chance to defend the application for the stay of execution since he was not served with the pleadings thereto.
d) That the order of stay has prejudiced the plaintiff/Applicant position.
2. In the supporting affidavit, he states that he was not served. Moreover, that the process server has no license to execute court process.
3. In the replying affidavit David Elius Ochieng the Licensed process server states that he served the plaintiff personall three times with Notice of Appeal, Records of Appeal in the presence of his son William Opot.
4. The process server has also annexed receipt no. 4236947 in respect of the fees for renewal of the license of process server.
5. I have considered all facts of the matter. I do find that though the process server was duly licensed to serve, he ought to have served the Counsel for the Decree Holder and not the Decree holder personally. For the fact that the plaitiffs counsel was not served I do allow the application. Orders accordingly.
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
DATED AND DELIVERED THIS 26TH DAY OF SEPTEMBER 2019.
In the presence of:
Applicant Mr. Mukabwa (advocate
Respondents Moses Onyango Adigo
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE