https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3652

Ng’etich & another v National Government Constituency Development Fund Board & 2 others (Environment and Land Case E034 of 2025) [2026] KEELC 3652 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3652 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Environment and Land Case E034 of 2025 GMA Ongondo, J June 11, 2026 Between Alice Jerono Ng’etich 1st Plaintiff Daniel Kipkorir 2nd Plaintiff and The National Government Constituency Development Fund Board 1st Defendant The Hon. Attorney General 2nd Defendant Modern Precast (K) Ltd 3rd Defendant Ruling 1.The right to fair hearing is anchored in Article 50 (1) of the Constitution of Kenya 2010 (The Constitution) thus;"Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body." 2.In that regard, the 3rd defendant/applicant, Modern Precast (K) Ltd (The 3rd defendant herein) through Oyaro J and Company Advocates originated an application by way of a Notice of Motion dated 19th May 2026 for the orders infra;a.Moot.b.Moot.c.That this Honourable court be pleased to review, set aside and/or discharge the Orders issued herein on the 27th day of January 2026 by the Honourable Justice G.M.A. Ongondo, for the reasons that the 3rd defendant was not served with the Plaintiffs’/Applicants’ (The plaintiffs herein) originating pleadings, the Notice of Motion dated 25th November 2025, any supporting affidavits or any Court process prior to the issuance of the said Orders, and was thereby denied its fundamental right to be heard.d.That upon the setting aside of the said Orders, this Honourable Court be pleased to grant the 3rd defendant leave to file its Response to the Plaintiffs’ Notice of Motion dated 25th November 2025 , within such time as this Honourable Court shall direct.e.That upon the hearing of the Plaintiffs’ Notice of Motion afresh and with the full participation of the 3rd Defendant, this Honourable Court be pleased to decline to grant or to discharge any injunctive orders against the 3rd Defendant, on the grounds more fully set out in the supporting affidavit filed herewith.f.That this Honourable Court be pleased to order the release and payment to the 3rd Defendant of all certified sums due and owing under Contract Agreement No. KoTDA/JITUMEHUBS-COE/296/2023-2024, in respect of works already executed and materials already delivered to the site prior to and following the grant of the said orders.g.That the costs of this application be provided for.h.That this Honourable court be pleased to grant such further and other relief as it may deem just and expedient in the circumstances.’ (Emphasis added) 3.The essential core of the application is the 3rd respondent’s 22-paragraphed affidavit sworn on even date by Chandreshkumar Madhubhai Babariya, the Managing Director and duly authorized representative of the 3rd respondent, a company duly incorporated with registration number CPR/2011/45501 together with the accompanying documents including copies of the Board Resolution and Company Official Search-MPK-1 and 2, Court Orders dated 27th January 2026-MPK-3 annexed alongside fifteen grounds stated on face of the application. The 3rd defendant averred, inter alia, the 3rd Defendant/Applicant was not served with the Plaintiffs’ application, plaint, verifying affidavit, or any supporting affidavit prior to the issuance of the orders of 27th January 2026 in flagrant violation of the 3rd Defendant’s right to a fair hearing guaranteed under Article 50(1) (supra) and the rules of natural justice, specifically the cardinal principle of audi alteram. That the failure to serve the 3rd Defendant with the application constitutes a fundamental breach of the Environment and Land Court (Procedure) Rules, the Civil Procedure Rules, Order 5 of the Civil Procedure Rules 2010 (The Rules herein) and this Court’s own practice directions on service of process, which mandate that all parties named as Respondents must be duly served before or at the time of any inter partes hearing. 4.Moreover, the 3rd defendant averred that the 3rd Defendant’s presence and construction activities on the suit property LR NO. 7830/228 Nandi Hills are entirely authorized, lawful and contractual, being carried out pursuant to a valid Contract Agreement dated 17th December 2024 with Konza Technopolis Development Authority, a State organ. That the project being executed by the 3rd Defendant is a national Government initiative of immense public importance, funded by public resources amounting to Ksh. 40,000,000.00, designed to provide digital infrastructure, skills development and economic opportunity to the residents of Nandi East Sub-County and the wider Nandi County Community, and its continued halting is a grave disservice to the public. That the public interest in the completion of a Government infrastructure project of this nature overrides and supersedes any private proprietary interest asserted by the plaintiffs over the suit property. That the Orders of 27th January 2026 have caused the 3rd Defendant suffer frustration of its contractual obligations through no fault of its own, arising from a supervening event, namely litigation over land title – of which the 3rd Defendant had no notice and over which it had no control. That the existence of these proceedings and the orders made herein were only brought to the attention of the 3rd Defendant or about 10th May 2026, when police officers from Nandi Hills Police Station arrived at the construction site citing the Court orders thus, provoking this application. 5.The plaintiffs opposed the application by their response to the application in form of a replying affidavit sworn on 26th May 2026 by the 1st plaintiff The plaintiffs averred in part that the 3rd defendant was duly served through electronically as per affidavit of service sworn on 1st December 2025 in accordance with the Rules. That as such, there is presumption of service 3rd defendant as held by the Court of Appeal in Shadrack Arap Baiywo vs Bodi Bach (1987) eKLR. That the 3rd defendant is at liberty to apply to cross examine the process server in relation to his affidavit of service. 6.Further, the plaintiffs stated that the 3rd defendant filed pleadings thus waived irregularity in service if any existed by acquiescence herein. That the application is an afterthought raised to delay these proceedings and to frustrate the orders, So the court should affirm the orders accordingly. 7.The 1st and 3rd defendants are in support of the application. 8.By the submissions dated 29th May 2026, learned counsel for the 3rd defendant referred to the application inclusive of the orders sought therein, the replying affidavit thereto and delineated three issues including whether the prayers in the application are available to the 3rd defendant. In discussing the issues, counsel submitted that the 3rd defendant was not duly served as disclosed in the affidavit of service sworn on 1st December 2025 by Jonah Melly who did not indicate the efforts employed to search for or find the 3rd defendant to justify the mode of service stipulated in Order 5 Rule 14 of the Rules. Reliance was made on Order 5 Rules 1, 3,8, 14 and 22B of the Rules, to buttress the submissions. 9.Further, counsel relied on, inter alia, the case of five Star Agencies Limited & Another-vs- Mutisya & Another (Suing on their own behalf and as administrators of the Estate of the Late Dennis Kioko Mutisya alias Denis Kioko Kioko Mutisya-Deceased) (Civil Appeal E013 of 2025) [2026] KEHC 4016 (KLR) by Justice J.N. Onyiego, who agreed with Lady Justice Aburili in Law Society of Kenya –versus- Martin Day & 3 Others [2015] eKLR that it is immaterial that the Defendant may have become aware of the suit through other means and even proceeded to enter an appearance. That such appearance is of no legal effect. Indeed, a Defendant who is aware of the existence of a suit but has not been duly served with valid summons to enter appearance, is entitled to disregard it altogether. 10.Counsel thus, took the position that that the ruling delivered on 27th January 2026 herein ought to be set aside ex debito justiciae, as a matter of right being guided by the case of James Kanyita Nderitu-vs-Marios Philotas Ghikas and another (2016) eKLR. The court was urged to exercise its discretion and set aside the ruling as well as prayed that the suit be struck out for failing to comply with Order 5 Rule 1(1) to (6) of the Rules or allow the application dated 19th May 2026 with costs to the Applicant and grant any other order as this Court deems just and fit in the circumstances. 11.In the plaintiffs’ submissions dated 7th June 2026, reference is made to the application and the directions of the court as regards service of the plaintiffs’ application dated 25th November 2025 upon all respondents. That the directions were complied with as the 3rd defendant was served twice namely physically attendance at Nandi Hills excavation site and electronically through its registered email address hence, the claim of non-service is a deliberate non-disclosure of material facts and ought to be dismissed. Three issues including whether the prayers in the application are available to the 3rd defendant, are identified therein. It was submitted that in any event, even if there were any irregularity in service – which is denied – the 3rd Defendant/Applicant has waived it by acquiescence. That the court record shows that service was done pursuant to an express direction of this Court. 12.Counsel submitted that reliance on Five Star Agencies case (supra) is misplaced as it is distinguishable from the instant case. That an affidavit of the process server is admissible in evidence and in the absence of consent it would normally be considered sufficient evidence of the regularity of the proceedings. That the 3rd Defendant/Applicant has neither pleaded nor demonstrated that summons not extracted within thirty (30) days of filing the plaint as required under Order 5 Rule 1(6) of the Rules. That this application is an afterthought designed to frustrate the Orders of this Court. 13.Furthermore, counsel submitted that there is in existence, a conservatory order maintaining the status quo over the suit property pending the hearing and determination of this suit. That those Orders remain in full force and effect. That Article 159(2)(d) of the Constitution empowers the courts to administer substantive justice without undue regard to procedural technicalities. That any irregularity in service should be overlooked it in the interest of justice. That the 3rd defendant had full notice of these proceedings, engaged with them substantively, and suffers no prejudice in presenting the defence. 14.In the foregone, the issues for determination captured in the rival submissions are embraced herein but boil down to whether the 3rd defendant has established entitlement to the orders sought in the application. 15.It is common ground that the plaintiff’s mounted the application dated 25th November 2025 for temporary injunctive relief against the 1st 2nd and 3rd defendants in respect of the suit property. That the application was heard without the participation of the 3rd defendant and status quo orders of 27th January 2026 ensued. 16.The 3rd defendant’s lamentation is that it was properly served with the plaintiff’s application. On their part, the plaintiffs maintain that the 3rd defendant was duly served as per the affidavit of service sworn on 1st December 2025 by a licenced process server, Jonah Kimeli Kemei who at paragraphs 4 and 5, stated;“4.That on 1st December 2025, I proceeded back to the Nandi Hills site to serve Modern Precast K. Limited and on arrival I introduced myself and purpose of my visit to Manager Modern Precast Ltd and later caused service but he declined to receive claiming he had strict instructions from Deputy County Commissioner Nandi Hills not to receive any documents. (Photos of the site showing manager on site attached).5.That later in the evening, I did cause service to Modern Precast (K) Limited at around 4.57 pm via their official email address: modernprecast2011@gmail.com since physical service proofed futile (copy of the said email and certificate of incorporation indicating their email attached).’6.Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules.” 17.Order 5 Rule 1 (5) and (6) of the Rules provides;‘Every Summons shall be prepared by the Plaintiff or his Advocate and filed with the Plaint to be signed in accordance with sub rule (2) of this rule.a.Every summons except where the Court is to effect service, shall be collected for service within thirty days of issue, failing which the suit shall abate. 18.More relevant to the 3rd defendant’s application, Order 5 Rule 3 of the Rules pertains to service of process on a corporation and the same states;“…Subject to any other written law, where the suit is against a corporation the summons may be served –a.On the secretary, director or other Principal officer of the corporation; orb.If the process server is unable to find any of the officers of the corporation mentioned in rule 3(a) –i.By leaving it at the registered office of the corporation.ii.By sending it by prepaid registered post or by a licensed courier service provider approved by the court to the registered postal address of the corporation; oriii.If there is no registered office and no registered office or physical address of the corporation, by leaving it at the place where the corporation carries on business; oriv.By sending it by registered post to the last known postal address of the corporation." 19.More importantly, Order 5 Rule 22B of the Rules tells it on service by electronic mail. Therefore, a process server cannot simply send an email to the address of a party to be served but must secure an Electronic Delivery Receipt to prove that the party received the message. Electronic service is an alternative to physical personal service. 20.In LSK vs Martin Day case (supra) cited in DNK vs GS [2022] KEHC 547 (KLR) which I endorse, it was held that failure to ensure successful service of court process (summons) to properly invoke jurisdiction of the court, can cause a suit to abate unless the summons are extended under Order 5 Rule 2 of the Rules. The court noted;“It is not sufficient for a plaintiff to institute a suit against a part…the summons must be served in the manner provided for in the Rules to the enable the defendants……..they be aware of the suit but unless prompted by the summons in the manner provided for in the rules, the jurisdiction of this court is not invoked." 21.Order 5 Rule 1 (6) (supra) governs collection of summons for service within thirty (30) days of issue or notification whichever is later. The same is not mere procedural technicality and can lead to the suit being struck out or declared void as held in Muigai vs Catherine Njambi (2014) eKLR. 22.In Arboretum Plaza Lt vs Middle East Bank Kenya Ltd {2025} KEHC 11446 (KLR), it was observed that failure to extract and serve summons is a fundamental jurisdictional lapse. That the suit would be deemed procedurally incurable and can be struck out. Also, the decision in the case of Cheruiyot vs Mashinani Star Ltd & 6 others {2026} KEELC 79 (KLR), reaffirmed that standpoint. 23.Besides, it is trite law that a court of law should only throw out a suit if it is clearly hopeless and cannot be salvaged through an amendment; see D.T Dobie & Company (Kenya) Ltd vs Joseph Muchina & another {1980} KECA 3 (KLR). 24.Clearly, the present suit is not hopeless. The parties have the unlimited right to fair trial of the matter in line with Nderitu case (supra) under Articles 25 (c ) and 50 (1) of the Constitution. 25.It is established law that the right to be heard is fundamental and permeates our entire justice system; see James Kanyiita Nderitu case (supra). 26.In the case of Philip Chemwolo & Mumias Sugar Comapany Ltd vs Austine Kubende (1986) eKLR, the Court of Appeal held;“………In the circumstances, it would be just that……..and allow the parties to go for trial on the issues in this suit……." 27.Notably, prayer number 6 for release and payment of sums due and owed under contract agreement is a misnomer in the application in view of the right to fair trial as noted in, inter alia, Chemwolo and Nderitu cases (supra). The payer is farfetched and I decline to grant it at this stage of the suit. 28.To this end, I find the application partially unchallenged as stated in paragraph 7 hereinabove. The same is meritorious. 29.A fortiori, the 3rd defendant’s application dated 19th May 2026, is hereby allowed in terms of prayers 3, 4 and 5 as follows;a.The Orders given on the 27th day of January 2026 herein, are reviewed, set aside and/or discharged for the reasons that the 3rd defendant was not properly served with the plaintiffs’ originating pleadings, the Notice of Motion dated 25th November 2025, any supporting affidavits or any Court process prior to the issuance of the said Orders, and was thereby denied its fundamental right to be heard and for the ends of justice.b.The 3rd defendant is granted leave to file its Response to the Plaintiffs’ Notice of Motion dated 25th November 2025 , within the next fourteen days from this date.c.The Plaintiffs’ Notice of Motion dated 26th November 2025, be heard afresh and with the full participation of the 3rd Defendant as this Honourable Court declines to grant any injunctive orders against the 3rd Defendant for reasons discerned in the application as already stated above.d.Further to order 8 for any other relief as sought in the application, the parties shall maintain the status quo obtaining over the suit property LR No. 7830/228 Nandi Hills Town as at 27th January 2026 when the ruling on the application was delivered, pending inter-partes hearing and determination of the application in light of sections 3 and 13 (7) of the Environment and Land Court Act 2015 (2011) and sections 1A, 1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya.e.Costs of the application be in the cause. 30.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 11TH DAY OF JUNE 2026.HON. G M A ONGONDOJUDGEIn the presence of;Mr. Joseph Oyaro learned counsel for the applicant/3rd Defendant.Mr. Walter Kipkorir, Court Assistant.