[2019] KEELC 3317 (KLR)
The court found that the circumstances under which the ex parte order was granted warranted its setting aside. The judge considered the submissions and the claim by the plaintiff/applicant that they were not served. Given the importance of affording parties an opportunity to be heard, and in the interest of justice,...
Source-derived case information.
- Citation
- [2019] KEELC 3317 (KLR)
- Parties
- Plaintiff: Patrick Lokwanga; Plaintiff: Paul Rop Komen; Plaintiff: Jacob Cheboi; Plaintiff: Christopher Kanda; Plaintiff: David Barng'etuny; Defendant: Joseph Cheboi; Defendant: Simion Too; Defendant: Johnstone Kisang; Defendant: Micheal Chebet; Defendant: Martin Kiprop; Defendant: Chepkamaba Kipkich
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 150 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- Ex parte order set aside; application for stay to be fixed for hearing.
- Legal Topics
- Setting Aside Ex Parte Orders, Service of Process, Stay of Execution, Clan Land Disputes
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Patrick Lokwanga
Plaintiff
Paul Rop Komen
Plaintiff
Jacob Cheboi
Plaintiff
Christopher Kanda
Plaintiff
David Barng'etuny
Plaintiff
Joseph Cheboi
Defendant
Simion Too
Defendant
Johnstone Kisang
Defendant
Micheal Chebet
Defendant
Martin Kiprop
Defendant
Chepkamaba Kipkich
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex parte order granted on 3/4/2018 should be set aside due to alleged lack of service on the plaintiff/applicant.
- 2 Whether the application for stay should be fixed for inter partes hearing.
Ratio Decidendi
The court found that the circumstances under which the ex parte order was granted warranted its setting aside. The judge considered the submissions and the claim by the plaintiff/applicant that they were not served. Given the importance of affording parties an opportunity to be heard, and in the interest of justice, the court exercised its discretion to set aside the ex parte order made on 3/4/2018. The application for stay was directed to be fixed for hearing inter partes, ensuring that both parties would have the opportunity to present their arguments on merit.
Court Disposition
Ex parte order set aside; application for stay to be fixed for hearing.
Orders
- The ex parte order made on 3/4/2018 is hereby set aside.
- The application for stay is to be fixed for inter partes hearing.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT ELDORET
ENVIRONMENT AND LAND CASE NO. 150 OF 2012
PATRICK LOKWANGA.....................................1ST PLAINTIFF
PAUL ROP KOMEN............................................2ND PLAINTIFF
JACOB CHEBOI..................................................3RD PLAINTIFF
CHRISTOPHER KANDA....................................4TH PLAINTIFF
DAVID BARNGETUNY.......................................5TH PLAINTIFF
Sued in their personal capacity and on behalf of KAREL CLAN)
VERSUS
JOSEPH CHEBOI..............................................1ST DEFENDANT
SIMION TOO....................................................2ND DEFENDANT
JOHNSTONE KISANG...................................3RD DEFENDANT
MICHEAL CHEBET.......................................4TH DEFENDANT
MARTIN KIPROP...........................................5TH DEFENDANT
CHEPKAMABA KIPKICH............................6TH DEFENDANT
Sued in their personal capacity and on behalf of KAMOI CLAN
RULING
This Ruling is in respect of an application dated 16/4/18 by the Plaintiff/Applicant for orders that the entire proceedings and the orders made on 3/4/18 be set aside and the Notice of Motion dated 8/2/18 be fixed for hearing.
Parties filed submissions in respect of the application and a ruling date set.
I have considered the submissions by both Counsel and the circumstances under which the orders were granted and have the following to say:
This matter was placed before Justice Ombwayo Under Certificate of Urgency during the court vacation and the Judge gave a hearing dated for 3/4/2018. The court had ordered the Applicant to serve the application by close of business on the same day.
On the day of the hearing Counsel for the plaintiff was absent and the court heard the application Ex-parte after Counsel filed an affidavit of service in court. The court granted an order of stay of execution with condition for deposit of security.
The Plaintiff/Applicant was dissatisfied with the order on the ground that they were never served.
I have considered the arguments and order that the Exparte Order is hereby set aside and the application for stay be fixed for hearing.
Hearing of application of 12/6/2019
Dated and delivered at Eldoret this 09th day of May, 2019
M.A. ODENY
JUDGE
RULING read in open court in the presence of Miss.Wahome for Plaintiff/Applicant and Mr.Kiboi for Defendant/Respondent.
Mr.Mwelem – Court Clerk