[2023] KEELC 21925 (KLR)
The court found that the substantive issue was whether the applicant should be allowed to respond to the impugned application, given the claim of non-service. In the interest of justice and to ensure that all parties have an opportunity to be heard, the court granted the applicant leave to respond to the application...
Source-derived case information.
- Citation
- [2023] KEELC 21925 (KLR)
- Parties
- Applicant: Wangay Farmers Self Group 7 & 70 others; Respondent: Salesa Adano & 8 others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Isiolo
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Petition E001 of 2023
- Procedural Posture
- Environment and Land Petition / Ruling on Application for Review and Leave to Respond
- Outcome
- Application partially allowed.
- Judges
- PM Njoroge
- Legal Topics
- Service of Process, Setting Aside Orders, Leave to Respond, Perjury Allegations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wangay Farmers Self Group 7 & 70 others
Applicant
Salesa Adano & 8 others
Respondent
Procedural Posture
Environment and Land Petition / Ruling on Application for Review and Leave to Respond
Legal Issues
- 1 Whether the applicant was properly served with the application dated September 12, 2023.
- 2 Whether the ruling delivered on October 9, 2023 should be set aside to allow the applicant to respond.
- 3 Whether the process server should be cited for perjury for alleged false affidavit of service.
Ratio Decidendi
The court found that the substantive issue was whether the applicant should be allowed to respond to the impugned application, given the claim of non-service. In the interest of justice and to ensure that all parties have an opportunity to be heard, the court granted the applicant leave to respond to the application dated September 12, 2023. The court declined to grant the prayer to cite the process server for perjury, finding no sufficient basis at this stage. No order as to costs was made. The decision was guided by the principle that justice is best served when parties are allowed to present their case fully, and that setting aside ex-parte orders is appropriate where service is...
Court Disposition
Application partially allowed.
Orders
- Prayer 2 in the application is granted: the applicant is granted leave to respond to the application dated September 12, 2023.
- Prayer 3 in the application is not granted: the process server is not cited for perjury.
Full Case Text
Judgment text and source record
20 paragraphs
Wangay Farmers Self Group 7 & 70 others v Adano & 8 others (Environment & Land Petition E001 of 2023) [2023] KEELC 21925 (KLR) (27 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21925 (KLR)
Republic of Kenya
In the Environment and Land Court at Isiolo
Environment & Land Petition E001 of 2023
PM Njoroge, J
November 27, 2023
Between
Wangay Farmers Self Group 7 & 70 others
Petitioner
and
Salesa Adano & 8 others
Respondent
Ruling
1. This application is dated 16/10/2023 and seeks orders:1. That the Honurable Court do certify this application as urgent and hear the same on priority basis.2. That the Honourable Court be pleased to review and set aside the ruling delivered on October 9, 2023 and grant the applicant leave to respond to the application dated September 12, 2023. 3.That the process server, who purportedly swore an affidavit to the effect that the applicant herein had been served with the pleadings in this Petition, be cited for perjury and punished appropriately.4. That the cost of this application be provided for.
2. The application is supported by the affidavit of Salesa Adano Abudo, the applicant and has the following grounds:1. That the applicant is cited as a respondent in the main petition and in the application dated September 12, 2023. 2.That the application herein is also the plaintiff in Isiolo ELC Case No. E001 of 2022 which is at the Defence Hearing stage.3. That the applicant has never been served either with the main petition or the application dated September 12, 2023, yet prejudicial orders were granted ex-parte.4. That the process server who purportedly swore an affidavit to the effect that the applicant had been duly served ought to be cited for perjury and punished appropriately for lying on oath.5. That it is therefore necessary that the ruling delivered on October 9, 2023 be set aside and the applicant be afforded leave to respond to the application dated 12th September, 2023.
3. The application was heard interparties. The applicant’s claim was that he was not served with the impugned application which culminated in the delivery of this court’s ruling dated 9/10/2023. The Respondent is categorical that the application was properly served upon the applicant.
4. It is quite clear that the substantive prayer in this application is that the applicant be allowed to respond to the impugned application. I am of the opinion that parties should be allowed to ventilate their issues in a court of law.Prayer 2 in the application is granted in the greater interest of justice and does not unduly prejudice the respondent.
5. Consequently, the following orders are hereby issued:a.Prayer 2 in the application is granted.b.Prayer 3 in the application is not granted.c.I issue no order as to costs.
DELIVERED IN OPEN COURT AT ISIOLO THIS 27TH DAY OF NOVEMBER, 2023. HON. JUSTICE P.M NJOROGEJUDGEIn presence of:Salesio Adano for 1st RespondentOther parties absent.