[2023] KEELC 17927 (KLR)
The court found that the affidavits of service filed by the applicant were defective as they did not clearly identify the process server who effected service and failed to attach stamped and received copies of the documents for the 3rd and 5th respondents. As a result, there was no proof that these respondents were...
Source-derived case information.
- Citation
- [2023] KEELC 17927 (KLR)
- Parties
- Applicant: Karsan Ramji & Sons Limited; Respondent: Officer Commanding Station Kanyonyoo Police Station; Respondent: Officer Commanding Station Nguutani Police Station; Respondent: Inspector General National Police Service; Respondent: Attorney General; Respondent: County Government Of Kitui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E001 of 2023
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application Regarding Service and Hearing Date
- Outcome
- Application stood over for proper service; directions issued for fresh service and hearing date.
- Judges
- LG Kimani
- Legal Topics
- Service of Process, Affidavit of Service, Right to Fair Hearing, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karsan Ramji & Sons Limited
Applicant
Officer Commanding Station Kanyonyoo Police Station
Respondent
Officer Commanding Station Nguutani Police Station
Respondent
Inspector General National Police Service
Respondent
Attorney General
Respondent
County Government Of Kitui
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application Regarding Service and Hearing Date
Legal Issues
- 1 Whether the affidavits of service filed by the applicant comply with legal requirements for proper service.
- 2 Whether the 3rd and 5th respondents were duly notified of the hearing date for the application.
- 3 Whether the application can proceed in the absence of proper service on all respondents.
Ratio Decidendi
The court found that the affidavits of service filed by the applicant were defective as they did not clearly identify the process server who effected service and failed to attach stamped and received copies of the documents for the 3rd and 5th respondents. As a result, there was no proof that these respondents were notified of the hearing date. The court held that proper service is a fundamental procedural requirement and, in its absence, the application could not proceed. The court directed that the petition and notice of motion be served afresh on all respondents and that proper affidavits of service be filed before the matter could proceed to hearing.
Court Disposition
Application stood over for proper service; directions issued for fresh service and hearing date.
Orders
- The petition dated April 6, 2023 and the notice of motion dated April 6, 2023 be served afresh on the respondents and a proper affidavit of service be filed.
- The notice of motion dated April 6, 2023 to be heard on April 26, 2023.
Full Case Text
Judgment text and source record
34 paragraphs
Karsan Ramji & Sons Limited v Officer Commanding Station Kanyonyoo Police Station & 4 others (Constitutional Petition E001 of 2023) [2023] KEELC 17927 (KLR) (20 April 2023) (Ruling)
Neutral citation: [2023] KEELC 17927 (KLR)
Republic of Kenya
In the Environment and Land Court at Kitui
Constitutional Petition E001 of 2023
LG Kimani, J
April 20, 2023
IN THE MATTER OF: ARTICLES 29, 39, 40, 47 49 & 50 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: VIOLATION OF ARTICLES 29, 39, 40, 47, 49 & 50 OF THE COSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: FAIR ADMINSTRATIVE ACTIONS ACT, 2015 IN THE MATTER OF: UNLAWFUL ARREST OF THE PETITIONER’S DRIVERS IN THE MATTER OF: UNLAWFUL DETENTION OF MOTOR VEHICLES KDC 403L AND KDE 039Q
Between
Karsan Ramji & Sons Limited
Petitioner
and
Officer Commanding Station Kanyonyoo Police Station
1st Respondent
Officer Commanding Station Nguutani Police Station
2nd Respondent
Inspector General National Police Service
3rd Respondent
Attorney General
4th Respondent
County Government Of Kitui
5th Respondent
Ruling
1. This matter is for ruling in respect of the application dated April 6, 2023. The Applicant seeks orders 2 and 4 of the said application.
2. The application was first filed before the High Court and this court on April 11, 2023. The Judge of the High Court noted that the matter was related to another matter before the ELC and directed that in order to avoid conflicting orders and/or parallel orders, the file be transferred to this court for hearing and further orders and the applicant was directed to serve the respondents.
3. The application was scheduled for hearing before this court on April 17, 2023 when counsel for the petitioner/applicant and the Officer Commanding Ngutani Police Station the 2nd respondent attended court.
4. The applicant confirmed having served on the respondents the petition, Notice of Motion, affidavits in support of the application and petition together with the orders dated April 11, 2023 and a mention notice dated April 12, 2023.
5. Counsel further confirmed that he had filed affidavits of service. Upon perusal of the affidavits of service filed on April 17, 2023 the court noted that the documents attached to the said affidavits did not show that some of the respondents were aware of the date the application was scheduled for hearing. Counsel undertook to regularize the position and provide duly received, and stamped copies of attachments/annexures to the affidavits of service.
6. I have looked at the affidavits of service filed and note as follows:i.The two affidavits of service filed are stated to be sworn by Henry Nyamoko and Aggrey Avumba.ii.The two affidavits are stated to have been made by Henry Nyamoko and Aggrey Avumba but the jurat of the two affidavits states that they were “sworn at Nairobi by Leroy Shikanda on April 14, 2023 before Jotham Okome Arwa Advocate.”iii.The affidavit of service of Henry Nyamoko/Leroy Shikanda did not attach the stamped copies of documents received by the 3rd respondent.iv.The affidavit of Aggrey Avumba/Leroy Shikanda only attached the stamped certificate of urgency received and stamped by the 5th respondent. It did not attach the stamped and received Notice of Motion, mention notice and/or orders issued on April 11, 2023.
7. From the above observations, the court finds that the affidavits of service filed are defective and they do not show the process server who effected service.
8. The court further finds that from the attachments to the said defective affidavits of service there is no proof that the 3rd and 5th respondents were notified of the date on which the application was to be heard.
9. It is further noted that the issues raised in this suit are common to the issues raised in ELC Petition No E005 of 2022 and specifically orders issued in the said suit on November 10, 2022.
10. Arising from the foregoing the court makes the following directions;i.The petition dated April 6, 2023, the notice of motion dated April 6, 2023 be served afresh on the respondents and a proper affidavit of service be filed.ii.The notice of motion dated April 6, 2023 to be heard on April 26, 2023. iii.That ELC Petition No E005 of 2022 Karsan Ramji & Sons Ltd Vs County Assembly of Kitui & Another be placed before the court together with this file on April 26, 2023 for directions and counsels in that petition be served with a mention notice and these directions.iv.Costs shall be in the cause.
DATED, SIGNED AND DELIVERED AT KITUI THIS 20TH DAY OF APRIL 2023. L. G. KIMANIJUDGEENVIRONMENT AND LAND COURT, KITUIRuling virtually in the presence of:C/A MusyokiOkwach together with Shikanda for Petitioner/ApplicantN/A for Respondents