[2017] KEELC 3706 (KLR)
The court found that the 1st Defendant was not served with the Application dated 21st September, 2011, as the Plaintiff did not rebut the Defendant's averments. The absence of service meant that the Defendant was denied the opportunity to be heard, rendering the ex parte order restraining him from dealing with the...
Source-derived case information.
- Citation
- [2017] KEELC 3706 (KLR)
- Parties
- Plaintiff: Phyllis Musoi Lepapa; Defendant: Abdirhaman Musa Said; Defendant: Olkejuado County Council
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 252 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Order
- Outcome
- Application allowed. Ex parte order set aside. Costs awarded to 1st Defendant.
- Judges
- OA Angote
- Legal Topics
- Service of Process, Ex Parte Orders, Setting Aside Orders, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phyllis Musoi Lepapa
Plaintiff
Abdirhaman Musa Said
Defendant
Olkejuado County Council
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Order
Legal Issues
- 1 Whether the 1st Defendant was properly served with the summons, plaint, and application dated 21st September, 2011.
- 2 Whether the ex parte order restraining the 1st Defendant should be set aside for lack of service.
- 3 Whether costs should be awarded to the 1st Defendant.
Ratio Decidendi
The court found that the 1st Defendant was not served with the Application dated 21st September, 2011, as the Plaintiff did not rebut the Defendant's averments. The absence of service meant that the Defendant was denied the opportunity to be heard, rendering the ex parte order restraining him from dealing with the suit property procedurally improper. The court applied the principle that orders made without service on the affected party must be set aside as a matter of right. Consequently, the court allowed the Application to set aside the ex parte order and awarded costs to the 1st Defendant.
Court Disposition
Application allowed. Ex parte order set aside. Costs awarded to 1st Defendant.
Orders
- The order of the court given on 29th September, 2014 and issued on 3rd December, 2015 restraining the 1st Defendant is set aside.
- Costs of the application are awarded to the 1st Defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
E.L.C. 252 OF 2011
PHYLLIS MUSOI LEPAPA ………..…..…………..PLAINTIFF/RESPONDENT
VERSUS
ABDIRHAMAN MUSA SAID…………………..1ST DEFENDANT/APPLICANT
OLKEJUADO COUNTY COUNCIL ……..……2ND DEFENDANT/APPLICANT
RULING:
1. The Application before me is the one dated 23rd June, 2016 in which the 1st Defendant is seeking for the following orders:-
1. That this Honourable Court be pleased to set aside the Order of the Court (Hon Justice B. Thuranira Jaden) given on 29th September, 2014 and issued on 3rd December 2015, which restrains the Applicant herein from erecting or constructing any structure or depositing and offloading any construction materials or entering or remaining on its parcel of land Plot No.1313 alleged to be a Plot No.1279 until the suit herein is heard and determined.
2. That during the hearing of the Application herein, this Honourable Court be pleased to order the attendance for cross – examination of Michael Ndirangu, the deponent of the affidavits dated 28th September, 2011, 22nd May, 2012 and 30th July, 2013, on the contents thereof.
3. That the costs of this Application be awarded to the 1st Defendant/Applicant.
2. The Application is based on the grounds that the Applicant has never been served with the Summons to enter Appearance, the Plaint and the Application dated 21st September, 2011; that the Applicant does not and has never resided in Ongata Rongai and that the Applicant has always resided in the Eastleigh area within Nairobi.
3. According to the Applicant, he only received the order of the Court on 29th September, 2014 when he started depositing construction materials on the suit property.
4. It is the Applicant’s case that due to the dishonest conduct of the Respondent, he was out rightly and unfairly denied a chance to be heard on the Plaintiffs Application.
5. The Plaintiff did not file a Replying Affidavit or grounds of opposition. In the circumstances, the depositions by the 1st Defendant have not been rebutted.
6. Having not rebutted the 1st Defendants averments, it follows that indeed the 1st Defendant was not served with the Application dated 21st September, 2011.
7. It is trite that where a party is not served with a pleading which requires him to respond, any order or decree emanating from such a pleading should be set aside ex dibito justitiae.
8. Having not denied the Applicant’s depositions, I shall, which I hereby do allow the 1st Applicant’s Application dated 23rd June, 2016 in terms of prayer numbers 1 and 3.
Dated, signed and delivered in MACHAKOS this 27THday of JANUARY 2017.
O. A. ANGOTE
JUDGE