Eric Kipngeno Koech v Joseph Cheruiyot Mesis & another [2017] KEELC 240 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ex parte injunction should be set aside for defective service
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
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.
Whether the criminal case should be stayed pending determination of the civil suit
Stay refused; no sufficient material showed the criminal proceedings were commenced with ulterior motive, and section 193A permits concurrent proceedings
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.
Legal principles established
#- 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
#- 1.The order of injunction issued on 16th October 2017 is lifted and set aside
- 2.The application dated 27th September 2017 be fixed for hearing inter partes within 45 days from the date thereof
- 3.The costs of the application shall be borne by the Plaintiff/Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.