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ELCPartially AllowedKericho ELC Case (application dated 18th October 2017)· [2017] KEELC 240 (KLR)

Eric Kipngeno Koech v Joseph Cheruiyot Mesis & another [2017] KEELC 240 (KLR)

Environment and Land Court
15 December 2017
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court lifted an ex parte land injunction because the other side wasn't properly served, but refused to stop a related criminal case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (J.M. Onyango, J) determined the Defendants' Notice of Motion dated 18th October 2017, brought under Order 40 Rule 7 and Order 51 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution. The application sought three prayers: setting aside the ex parte injunction issued on 16th October 2017 restraining the Defendants from interfering with land parcel KERICHO/EAST SOTIK S.S/1114; listing afresh the application dated 27th September 2017 for inter partes hearing; and staying Bomet SPM Criminal Case No. 1636 of 2016 (Republic v Joseph Cheruiyot Mesis) pending the suit. The Defendants complained of defective service under Order 5 Rules 7 and 12, raised issues of fraud in the Plaintiff's acquisition of the suit land, and urged the emotive nature of the matter given criminal proceedings arising from a death. The Plaintiff opposed, asserting proper service and irreparable loss. The court framed three issues. On the first, it found the Affidavit of Service non-compliant with Order 5 Rules 7, 12 and 15, only one Defendant having been served, and set the injunction aside. On the stay of the criminal case, the court applied section 193A of the Criminal Procedure Code and the Midlands Limited v DPP line of authority, holding that no ulterior motive or abuse of power by the DPP was demonstrated, and declined the stay, undertaking instead to expedite the civil hearing. The application succeeded in part; costs were awarded to the Defendants against the Plaintiff.

Key legal issues

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01

Whether the ex parte injunction should be set aside for defective service

Holding

The injunction was set aside because the affidavit of service did not comply with Order 5 Rules 7, 12 and 15, only one defendant having been served

Reasoning

The court held that ex parte proceedings require balancing fair notice against preventing imminent harm, citing the duty of full disclosure. Perusing the Affidavit of Service sworn 13th October 2017, the court found no mention of efforts to serve the second defendant. Defective service deprived the defendants of fair notice, and in the wider interest of justice they were entitled to have the injunction set aside.

p. 2
02

Whether the criminal case should be stayed pending determination of the civil suit

Holding

Stay refused; no sufficient material showed the criminal proceedings were commenced with ulterior motive, and section 193A permits concurrent proceedings

Reasoning

Section 193A of the Criminal Procedure Code provides that overlapping civil and criminal matters are no ground for staying the criminal case. Following Midlands Limited v DPP, the court noted no demonstration of abuse of power by the DPP. The criminal case had run for about a year; the court instead undertook to expedite the hearing of the civil suit.

p. 3

Legal principles established

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  • A person making an ex parte application owes the court a duty of fullest disclosure of all material facts, failing which any advantage obtained may be deprived
  • Section 193A of the Criminal Procedure Code bars staying criminal proceedings merely because the same matter is in issue in civil proceedings

Court orders

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  1. 1.The order of injunction issued on 16th October 2017 is lifted and set aside
  2. 2.The application dated 27th September 2017 be fixed for hearing inter partes within 45 days from the date thereof
  3. 3.The costs of the application shall be borne by the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 5 Rules 7, 12 and 15
  • Civil Procedure Actsections 3 and 3A
  • Constitution of KenyaArticle 159
  • Criminal Procedure Codesection 193A

Cases cited (3)

  • Midland Limited and 2 others v Director of Public Prosecutions and 7 Others
    (2015) eKLR
  • Abraham Lenauia v Charles Ketekya Nkaru
    (2016) eKLR
  • Ex Parte Princess Edmond De Polignac
    1917 I KB 48
Jurisdiction invoked
Order 40 Rule 7 and Order 51 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act, Article 159 of the Constitution of Kenya

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, "Eric Kipngeno Koech v Joseph Cheruiyot Mesis & another [2017] KEELC 240 (KLR)", Case Analysis (2017). Kericho ELC Case (application dated 18th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/240/eng@2017-12-15

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