Stephen Kibowen v Raymond Ruto & 5 others [2017] KEELC 1275 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte orders of 4th April 2017 were made without valid service
There was no valid service; the affidavit of service annexed only the certificate of urgency and not the Notice of Motion, so service could not be verified. The orders were therefore set aside ex debito justitiae.
The applicant deponed on oath that the served application bore a hearing date of 14th April 2017 rather than 4th April 2017, and the annexed copy supported this. The respondents alleged alteration of the date and suggested a document examiner, but the court found that allegation to require criminal investigation and outside the scope of the application. Critically, the affidavit of service annexed only the certificate of urgency, making it impossible to verify the respondents' claim of endorsement of the hearing date. Without proof of valid service, the ex parte orders were irregular and had to be set aside as of right.
Whether the applicant should in any event be heard on transfer and consolidation
Even if service had been proper, the court would still have discretion to allow the applicant to be heard on the merits of transfer and consolidation.
The applicant had raised substantial questions on whether the suit should be transferred to Eldoret and whether consolidation with Eldoret Environment and Court Case No. 119 of 2017 was desirable. The court held that the interest of justice required the applicant be given an opportunity to be heard on all these issues so that any determination is made on the merits rather than ex parte.
Legal principles established
#- A default order made against a party who was not served or properly served is set aside as of right (ex debito justitiae), without inquiry into triable issues or delay
- The right to be heard before an adverse decision is fundamental to the justice system
Court orders
#- 1.The orders made on 4th April 2017 transferring this suit to the court sitting at Eldoret for hearing and final determination and for consolidation with Eldoret Environment and Court Case No. 119 of 2017 are set aside
- 2.Notice of Motion dated 21st March 2017 shall be heard afresh
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kibowen v Raymond Ruto & 5 others [2017] KEELC 1275 (KLR)", Case Analysis (2017). Not stated in the judgment text provided (ruling on plaintiff's Notice of Motion dated 4th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1275/eng@2017-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.