[2023] KEELC 20639 (KLR)
The court declined to rule on the preliminary objections because it could not ascertain from the record whether the plaintiff had been served with the preliminary objections or the submissions in support thereof. The absence of the plaintiff's submissions and uncertainty regarding service meant that proceeding to...
Source-derived case information.
- Citation
- [2023] KEELC 20639 (KLR)
- Parties
- Plaintiff: Kubai Investments Ltd; Defendant: Sian Enterprises Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E53 of 2019
- Procedural Posture
- Environment and Land Case / Ruling on Preliminary Objections; Referral for Directions on Service and Replies
- Outcome
- Matter referred back to Nakuru court for directions on service and replies before determination of preliminary objections.
- Judges
- FM Njoroge
- Legal Topics
- Preliminary Objection, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kubai Investments Ltd
Plaintiff
Sian Enterprises Ltd
Defendant
Procedural Posture
Environment and Land Case / Ruling on Preliminary Objections; Referral for Directions on Service and Replies
Legal Issues
- 1 Whether the preliminary objections were properly served on the plaintiff.
- 2 Whether it is proper to proceed with a ruling on the preliminary objections in the absence of confirmation of service and replies from the plaintiff.
Ratio Decidendi
The court declined to rule on the preliminary objections because it could not ascertain from the record whether the plaintiff had been served with the preliminary objections or the submissions in support thereof. The absence of the plaintiff's submissions and uncertainty regarding service meant that proceeding to determine the objections would be procedurally improper and contrary to the principles of fairness and natural justice. The matter was therefore referred back to the Nakuru court to address the issues of service and filing of replies, ensuring all parties have an equal opportunity to participate in the determination of the preliminary objections.
Court Disposition
Matter referred back to Nakuru court for directions on service and replies before determination of preliminary objections.
Orders
- The matter is referred back to Nakuru for the issue of service and filing of replies to be dealt with by the court there.
Full Case Text
Judgment text and source record
16 paragraphs
Kubai Investments Ltd v Sian Enterprises Ltd (Environment & Land Case E53 of 2019) [2023] KEELC 20639 (KLR) (12 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20639 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment & Land Case E53 of 2019
FM Njoroge, J
October 12, 2023
Between
Kubai Investments Ltd
Plaintiff
and
Sian Enterprises Ltd
Defendant
Ruling
1. On 16/5/2023 the court learnt of the 4th defendant’s P.O. On 30/5/2023 Mr Terer informed court that he had a P.O. dated 9/8/23 which was not in the court record whereupon the court ordered him to avail a copy. Mr Okiro for the 1st defendant had not been served with the 2nd P.O. by then and the court ordered that he be served. On the same day this court ordered that the two preliminary objections dated 27/4/2023 and 9/8/2019 be disposed of together by way of written submissions and the objectors in each objection were to file and served submissions in 10 days and the respondents to respond in like period. The matter was scheduled for 21/6/2023 for directions but was mentioned on 20/6/2023 when Ms Shirika informed court that her office was not participating in the P.O. on 20/6/23 the court gave a ruling date of 12/10/2023 in the plaintiff’s counsel’s absence. Submissions of some of the defendants are on the file but those of the plaintiff are not yet the plaintiff is the respondent to the matters enumerated in the P.Os. It can not be ascertained from the record if the Preliminary Objections or submissions in support thereof were served on the plaintiff. I find it not proper in the present circumstances to make a ruling on the P.O.s now. Instead I refer this matter back to Nakuru where the issue of service and filing of replies will be dealt with by the court there so as to give all parties a level ground in their participation in the P.O.s since the ramifications of the orders sought are great.
DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 12TH DAY OF OCTOBER, 2023. MWANGI NJOROGEJUDGE, ELC, MALINDI