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ELCPartially AllowedNot stated in the judgment text provided (ruling on plaintiff's Notice of Motion dated 4th April 2017)· [2017] KEELC 1275 (KLR)

Stephen Kibowen v Raymond Ruto & 5 others [2017] KEELC 1275 (KLR)

High Court of Kenya
5 October 2017
1,543 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by D. O. Ohungo J at the High Court, Nakuru, determined the plaintiff's Notice of Motion dated 4th April 2017 seeking to set aside ex parte orders made on 4th April 2017 transferring the suit to Eldoret and consolidating it with Eldoret Environment and Court Case No. 119 of 2017. The application was brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules 2010. The plaintiff deponed that the application served on his advocates indicated a hearing date of 14th April 2017 (a public holiday), yet the application was placed before the court on 4th April 2017 and orders issued in his advocates' absence. The defendants, through advocate Steve Odhiambo Opar and 1st defendant Raymond Ruto, alleged that the applicant's advocates altered the date from 4th April 2017 to 14th April 2017 and suggested referral to a document examiner. Applying the principles in Mbogoh & Another v Shah and James Kanyiita Nderitu, the court distinguished regular from irregular ex parte orders and held that orders made without valid service are set aside ex debito justitiae as a matter of right. On the annexed affidavit of service, only the certificate of urgency - not the Notice of Motion - had been served, so valid service could not be verified. The court found no reason to doubt the applicant, set aside the transfer and consolidation orders, directed that the Notice of Motion dated 21st March 2017 be heard afresh, and ordered costs in the cause.

Key legal issues

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01

Whether the ex parte orders of 4th April 2017 were made without valid service

Holding

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.

Reasoning

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.

p. 3
02

Whether the applicant should in any event be heard on transfer and consolidation

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Notice of Motion dated 21st March 2017 shall be heard afresh
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3 and 3A
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure RulesOrder 10 rule 11

Cases cited (5)

  • Mbogoh & Another v. Shah
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Patel v. E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Chemwolo & Another v. Kubende
    [1986] KLR 492
  • CMC Holdings v. Nzioki
    [2004] 1 KLR 173
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

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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, "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.