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ELCOtherApplication dated 13th June 2014 (Nyeri Environment and Land Court)· [2016] KEELC 91 (KLR)

Samuel Mwangi Kamami v Daniel Muchiri Mwangi & another [2016] KEELC 91 (KLR)

Environment and Land Court
23 November 2016
LWL N Waithaka
465 words in judgment
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The bottom line

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A Kenyan court refused to remove cautions on a father's land because his children were never properly served with a hearing notice.

What this practically means

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Executive summary

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This is a first-instance interlocutory ruling by the Environment and Land Court at Nyeri on a notice of motion dated 13th June 2014. The applicant, Stephen Mwangi Kariuki, sought orders compelling the Land Registrar, Nyeri to remove cautions lodged by the respondents, Daniel Muchiri Mwangi and Mary Njeri Mwangi, against Title Numbers Iriaini/Kiaguthu/593 and Mweiga/Block 5/Muthuini/413. The applicant deponed that the respondents are his children and that the cautions prevented him from selling part of the suit properties to cater for medication for diabetes and hypertension. In court he also asked to be allowed to subdivide the properties among his children. The application was unopposed: the respondents neither attended court nor filed a response despite affidavits of service by two licensed process servers showing repeated service of the motion. The court, however, identified a defect in service: the process server's affidavits showed that the respondents were served again with the motion rather than with hearing notices for the hearing fixed for 3rd March 2016. Not being satisfied that proper service was effected, the judge declined to grant the orders sought and instead directed the applicant to take another hearing date and to serve the hearing notice upon the respondents. The application was therefore not determined on the merits and no costs order was made. The ruling was delivered in open court at Nyeri on 23rd November 2016.

Key legal issues

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01

Adequacy of service of the hearing notice on the respondents

Holding

Service was improper because, although the motion was served on the respondents, they were not served with the hearing notice for the hearing on 3rd March 2016.

Reasoning

The court examined the affidavits of service of two licensed process servers. It observed that the respondents were not served with hearing notices for the application coming up on 3rd March 2016, but were instead served again with the motion itself. Service of the substantive application is not equivalent to service of a hearing notice, so the interlocutory orders could not properly be granted in the respondents' absence.

p. 2

Legal principles established

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  • A court will not grant substantive relief on an application where proper service of the hearing notice on the opposing parties has not been established.

Court orders

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  1. 1.The court declined to grant the orders sought in the application dated 13th June 2014
  2. 2.The applicant is directed to take another hearing date for the application
  3. 3.The applicant is directed to effect service of the hearing notice upon the respondents
Jurisdiction invoked
Not expressly stated; the court exercised its first-instance jurisdiction to deal with cautions lodged against title numbers Iriaini/Kiaguthu/593 and Mweiga/Block 5/Muthuini/413

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Mwangi Kamami v Daniel Muchiri Mwangi & another [2016] KEELC 91 (KLR)", Case Analysis (2016). Application dated 13th June 2014 (Nyeri Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/91/eng@2016-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.