[2022] KEELC 47 (KLR)
The court found that the orders made on 02/12/2021 could not stand because they were issued without giving the judgment debtor an opportunity to be heard, which is a fundamental breach of natural justice and procedural fairness. The only exception was the substitution of the judgment debtor by Wilfred Moriasi Ombui,...
Source-derived case information.
- Citation
- [2022] KEELC 47 (KLR)
- Parties
- Plaintiff: Kabete Mbuga; Defendant: Nyakangi Nyamache
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 104 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Application to Set Aside Orders and Substitution of Judgment Debtor
- Outcome
- Partial setting aside of previous orders; substitution of judgment debtor allowed; directions for further submissions on executability of decree.
- Judges
- JM Kamau
- Legal Topics
- Right to Be Heard, Setting Aside Orders, Substitution of Parties, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kabete Mbuga
Plaintiff
Nyakangi Nyamache
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Set Aside Orders and Substitution of Judgment Debtor
Legal Issues
- 1 Whether the orders made on 02/12/2021 should be set aside due to lack of opportunity for the judgment debtor to be heard.
- 2 Whether the substitution of the judgment debtor by Wilfred Moriasi Ombui should be allowed.
- 3 Whether the decree is executable.
Ratio Decidendi
The court found that the orders made on 02/12/2021 could not stand because they were issued without giving the judgment debtor an opportunity to be heard, which is a fundamental breach of natural justice and procedural fairness. The only exception was the substitution of the judgment debtor by Wilfred Moriasi Ombui, which both parties agreed to. The court therefore set aside the previous orders except for the substitution and directed parties to file written submissions on the executability of the decree, to be highlighted in open court on a specified date.
Court Disposition
Partial setting aside of previous orders; substitution of judgment debtor allowed; directions for further submissions on executability of decree.
Orders
- Orders made on 02/12/2021 are set aside except for the substitution of the judgment debtor by Wilfred Moriasi Ombui.
- Parties to file and serve written submissions on the executability of the decree within the specified timelines.
Full Case Text
Judgment text and source record
19 paragraphs
Mbuga v Nyamache (Environment & Land Case 104 of 2021) [2022] KEELC 47 (KLR) (10 May 2022) (Ruling)
Neutral citation: [2022] KEELC 47 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Case 104 of 2021
J M Kamau, J
May 10, 2022
Between
Kabete Mbuga
Plaintiff
and
Nyakangi Nyamache
Defendant
Ruling
1. Counsel for the Decree Holder has owned up that the Application dated 06/07/21 was heard and determined without the Judgment Debtor being given an opportunity to be heard. This had not been brought to the attention of the court when the Application was being heard and determined. This therefore resulted in miscarriage of justice. In the premises, the orders made on 02/12/2021 cannot stand save what counsel for the Judgment Debtor has acquiesced to i.e. that the substitution of the Judgment Debtor by the proposed Wilfred Moriasi Ombui be made.
2. As to the other orders I invite parties to address me by way of written Submissions which should be filed and served first by counsel for the Judgment Debtor within 14 days after service on the issue of whether the Decree is executable or not. Thereafter, the Decree Holder shall file his written Submissions and serve them within 14 days from the date of service of the Judgment Debtor’s Submissions. Both Counsel will then appear in open court on 14/06/2022 to highlight on their Submissions.
3. This is the order of the court delivered in the presence of both Counsel.
4. Ruling dated, signed and delivered at Nyamira this 10th Day of May, 2022
MUGO KAMAUJUDGEIn the Presence of:Court Assistant: SibotaPlaintiff: Mr. MaseseDefendant: Ms. Nyaenya