[2021] KEELC 4376 (KLR)
The court found that the petitioners' excuse for failing to serve the necessary documents on the 8th respondent's advocate was not credible, as there is no requirement for personal service on an advocate. The court determined that the petitioners' conduct suggested an intention to delay the hearing of the...
Source-derived case information.
- Citation
- [2021] KEELC 4376 (KLR)
- Parties
- Applicant: William Mutuura Kairibia; Applicant: Felix Gitonga Nthiga Mutuura; Respondent: Inspector General of Police; Respondent: Director of Public Prosecutions; Respondent: Senior Principal Magistrate, Marimanti; Respondent: County Land Registrar Tharaka Nithi County; Respondent: County Surveyor Tharaka Nithi County; Respondent: County Government of Tharaka Nithi; Respondent: Director of Surveys; Respondent: Elijah Muthuri Muriungi; Respondent: District Land Adjudication and Settlement Officer
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E002 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Application to Vacate Interim Orders
- Outcome
- interim orders vacated; directions for further conduct of the matter issued
- Legal Topics
- Interim Orders, Service of Documents, Land Possession Disputes, Preliminary Objection, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Mutuura Kairibia
Applicant
Felix Gitonga Nthiga Mutuura
Applicant
Inspector General of Police
Respondent
Director of Public Prosecutions
Respondent
Senior Principal Magistrate, Marimanti
Respondent
County Land Registrar Tharaka Nithi County
Respondent
County Surveyor Tharaka Nithi County
Respondent
County Government of Tharaka Nithi
Respondent
Director of Surveys
Respondent
Elijah Muthuri Muriungi
Respondent
District Land Adjudication and Settlement Officer
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Vacate Interim Orders
Legal Issues
- 1 Whether the interim orders should be vacated due to the petitioners' failure to serve submissions within the stipulated time.
- 2 Whether the petitioners' explanation for non-service was sufficient to justify retention of interim orders.
- 3 Whether the petitioners were abusing the court process to delay hearing of the Preliminary Objection.
Ratio Decidendi
The court found that the petitioners' excuse for failing to serve the necessary documents on the 8th respondent's advocate was not credible, as there is no requirement for personal service on an advocate. The court determined that the petitioners' conduct suggested an intention to delay the hearing of the Preliminary Objection while continuing to benefit from the interim orders. Consequently, the court exercised its discretion to vacate the interim orders previously granted, emphasizing the importance of compliance with procedural rules and the need to prevent abuse of court process.
Court Disposition
interim orders vacated; directions for further conduct of the matter issued
Orders
- Interim orders issued on 30.11.2020 and extended on 16.12.2020 and 1.2.2021 are hereby vacated.
- All parties are to serve the other parties with all the apposite documents within 7 days of the ruling date.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELCCONSTITUTION PETITION CASE NO. E002 OF 2020
IN THE MATTER OF MARIMANTI MAGISTRATES COURT CRIMINAL CASE NO. 540 OF 2020
AND
IN THE MATTER OF ARTICLES 2(1), 3(1), 10, 19, 20, 21, 22, 23, 25, 27, 48, 50, 157, 165(6) AND 245 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF VIOLATION OF ARTICLES 50(2) ( C) AND 40 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE LAND ADJUDICATION ACT, CAP 284 LAWS OF KENYA
BETWEEN
WILLIAM MUTUURA KAIRIBIA..........................................1ST PETITIONER
FELIX GITONGA NTHIGA MUTUURA...............................2ND PETITIONER
VERSUS
INSPECTOR GENERAL OF POLICE..................................1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIOS..........................2ND RESPONDENT
SENIOR PRINCIPAL MAGISTRATE, MARIMANTI......3RD RESPONDENT
THE COUNTY LAND REGISTRAR THARAKA NITHI
COUNTY..................................................................................4TH RESPONDENT
THE COUNTY SURVEYOR THARAKA NITHI
COUNTY..................................................................................5TH RESPONDENT
COUNTY GOVERNMENT OF THARAKA NITHI...........6TH RESPONDENT
THE DIRECTOR OF SURVEYS..........................................7TH RESPONDENT
ELIJAH MUTHURI MURIUNGI.........................................8TH RESPONDENT
DISTRICT LAND ADJUDICATION AND SETTLEMENT
OFFICER.................................................................................9TH RESPONDENT
RULING
1. Mr. Atheru, the 8th respondents’ advocate orally asked the court to vacate interim orders issued by this court. For this assertion, he relied on the failure by the petitioners not to serve their submissions concerning his Preliminary Objection dated 15th December, 2020 within the time stipulated by the court.
2. Advocate Atheru told the court that those interim orders were issued per incurium because the petitioners had failed to disclose to the court that the 8th respondent had been in possession of the suit property following a decision of this court in Chuka ELC No. 8 of 2018. Mr. Atheru told the court that the refusal to serve apposite papers upon the 8th respondent was to allow the petitioners to continue enjoying the interim orders.
3. The petitioners excuse for not serving the apposite papers within the stipulated time was judicially and veritably risible. Their advocate told the court that when they went to serve the said papers, they were told that the 8th respondent’s advocate had gone to court. Surely, there is no requirement that an advocate be served personally. They should have served his employees and left the papers in his office. I do not accept the petitioners’ explanation.
4. I am tempted to agree with the 8th respondent’s advocate that the petitioners want to delay the hearing of the Preliminary Objection as they continue to enjoy the extant interim orders.
5. In the circumstances, I issue the following orders:
a) Interim orders issued on 30. 11. 2020 and extended on 16. 12. 2020 and further extended on 1. 2.2021 are hereby vacated.
b)All parties are to serve the other parties with all the apposite documents within 7 days of today.
c) By consent of counsels present, directions will be taken on 10. 3.2021.
Delivered in open Court at Chuka this 15th day of February, 2021 in the presence of:
CA: Ndegwa
M/s Macheru for the petitioners
Sichanya for the 6th respondent
Atheru for the 8th respondent
HON. JUSTICE (Dr.) P. M. NJOROGE,
ELC JUDGE.