[2017] KEELC 3473 (KLR)
The court found that the plaintiff had failed to serve the application for inhibition orders on the defendants despite having obtained interim orders. The court held that service of process is fundamental to fair hearing and due process. The plaintiff's failure to serve or prosecute the application justified its...
Source-derived case information.
- Citation
- [2017] KEELC 3473 (KLR)
- Parties
- Plaintiff: Makembo Kaya; Defendant: Silas Nyaga; Defendant: Joseph Mugambi Kamuyu; Defendant: Elijah Muthengi Kamuyu; Defendant: Grace Githinji Kamuyu; Defendant: Ruth Mwende; Defendant: Jacob Muteitha Gakiroru; Defendant: John Kamunyu Gakiroru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 13 of 2017
- Procedural Posture
- Land Case / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Inhibition Orders, Service of Process, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Makembo Kaya
Plaintiff
Silas Nyaga
Defendant
Joseph Mugambi Kamuyu
Defendant
Elijah Muthengi Kamuyu
Defendant
Grace Githinji Kamuyu
Defendant
Ruth Mwende
Defendant
Jacob Muteitha Gakiroru
Defendant
John Kamunyu Gakiroru
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff's application for inhibition orders should be granted despite non-service to the defendants.
- 2 Whether failure to serve the application warrants dismissal for non-prosecution.
Ratio Decidendi
The court found that the plaintiff had failed to serve the application for inhibition orders on the defendants despite having obtained interim orders. The court held that service of process is fundamental to fair hearing and due process. The plaintiff's failure to serve or prosecute the application justified its dismissal. The court further directed both parties to comply with pre-trial procedures under Order 11 of the Civil Procedure Rules to facilitate the expeditious disposal of the main suit.
Court Disposition
application dismissed
Orders
- The application dated 12.7.2016 is dismissed with costs to be in the cause.
- The plaintiff is ordered to comply with Order 11 of the Civil Procedure Rules within 7 days.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA LAND CASE NO 13 OF 2017
FORMERLY MERU ELC CASE NO.04 OF 2016
MAKEMBO KAYA…………………………………….......……..PLAINTIFF
VERSUS
SILAS NYAGA………………………………………..….....1ST DEFENDANT
JOSEPH MUGAMBI KAMUYU……………………..…..…2ND DEFENDANT
ELIJAH MUTHENGI KAMUYU……………………...….….3RD DEFENDANT
GRACE GITHINJI KAMUYU………………………………..4TH DEFENDANT
RUTH MWENDE……………………………………….…..…5TH DEFENDANT
JACOB MUTEITHA GAKIRORU……………………………6TH DEFENDANT
JOHN KAMUNYU GAKIRORU……………………...….…....7TH DEFENDANT
RULING
1. This application is dated 12. 7.2016 and seeks orders:
1. That this honourable court be pleased to CERTIFY this application as URGENT and the same be heard ex parte in the first instance.
2. That order of inhibition be issued to restrain all dealings in respect of L.R. NOS.3860-3867 Gatunga Adjudication Section.
3. That the costs for and incidental to this application be costs in the main suit.
2. The application is supported by the affidavit of MAKEMBO KAYA and has the following grounds:
i. That the defendant is intending to dispose of the suit lands which will render this suit nugatory.
ii. That the defendants will not be prejudiced in any way if the orders sought are granted.
3. When the matter came up for directions on 7. 3.2013, it transpired that even though the plaintiff had obtained interim orders on 18. 7.2016, he had not served the defendants with the application dated 12. 7.2016. Mr Muriithi urged that the application be dismissed for non-service and non-prosecution.
4. Mr. Mutunga holding brief for Mr. Kariuki for the plaintiff agreed that application dated 12. 7.2016 had not been served upon the defendants but urged the court to give the plaintiff time to serve the application upon the defendants.
5. I find that this application merits dismissal.
6. The application is dismissed with costs to be in the cause.
7. The plaintiff is ordered to comply with order 11 CPR within 7 days of today and the defendants are to do so within 7 days after receipt of the plaintiff’s compliance documents.
8. Parties to come to court for pre-conferencing and for directions on 21. 3.2017.
9. It is so ordered.
Delivered in open court at Chuka this 7th day of March, 2017 in the presence of:
CA: Ndegwa
Mutunga h/b B.G.Kariuki for the plaintiff
Muriithi for the defendants
P. M. NJOROGE
JUDGE