[2021] KEELC 3987 (KLR)
The court declined to grant the interim injunction sought by the plaintiff because there was no evidence on record that the application had been served on the defendant as required by the court's previous orders. The absence of an affidavit of service or any indication of service in the applicant's submissions left...
Source-derived case information.
- Citation
- [2021] KEELC 3987 (KLR)
- Parties
- Plaintiff: Portsmouth Holdings Ltd; Defendant: Kenya Railways Corporation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 7 of 2021
- Procedural Posture
- Land Case / Ruling on Interim Injunction Application
- Outcome
- application declined
- Legal Topics
- Interim Injunctions, Service of Process, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Portsmouth Holdings Ltd
Plaintiff
Kenya Railways Corporation
Defendant
Procedural Posture
Land Case / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the plaintiff's application for interim injunction can be granted in the absence of proof of service on the defendant.
- 2 Whether the court should issue orders affecting a party who may not have been served with the application.
Ratio Decidendi
The court declined to grant the interim injunction sought by the plaintiff because there was no evidence on record that the application had been served on the defendant as required by the court's previous orders. The absence of an affidavit of service or any indication of service in the applicant's submissions left the court unable to determine whether the defendant had notice of the proceedings. The court emphasized that service of process is a fundamental requirement of due process and that granting orders in the absence of proof of service would risk condemning parties unheard. Consequently, the application was declined for want of demonstrated service.
Court Disposition
application declined
Orders
- The plaintiff's application dated 4/2/2021 is declined for want of proof of service.
- No orders as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 7 OF 2021
PORTSMOUTH HOLDINGS LTD.....................................PLAINTIFF
VERSUS
KENYA RAILWAYS CORPORATION.......................... DEFENDANT
RULING
1. The plaintiff’s application dated 4/2/2021 seeks an interim injunction to retrain the defendant from interfering in any way with all that parcel of land known as LR 2116/414- Kitale Municipality on the basis that the title thereto is held by the plaintiff and the defendant has no right to meddle with the property.
2. Notwithstanding that title and purportedly without notice the defendant has allegedly trespassed on the suit land and destroyed almost all the improvements thereon and is intent on fencing off the suit property to deny the plaintiff access thereto.
3. I have perused the court file and found no replying affidavit filed on behalf of the respondent in respect of the instant application. However, there is no affidavit of service regarding the present application. This court can not therefore determine whether it was served and subsequently ignored by the respondent or not; even the applicant’s submissions do not reveal whether service was effected or not.
4. Service of process is crucial. Effective service gives due process its meaning, otherwise many parties risk being condemned unheard even when they did not know of proceeding filed against them. The law requires adequate service of process. Therefore when a court has ordered a party to serve process on another party it is not proper for that party so ordered to leave the court guessing whether the service of the application has been effected or not.
5. This court, being aware of the seriousness of granting orders against any party that has not been served in accordance with its orders should not grant any prayers unless the application has been proved to have been served.
6. As the application has not been demonstrated to have been served on the respondent in accordance with the orders made on 11/2/2021, it is hereby declined with no orders as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI VIA ELECTRONIC MAIL ON THIS 17TH DAY OF MARCH, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.