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ELCPartially AllowedE.L.C. 252 of 2011· [2017] KEELC 3706 (KLR)

Phyllis Musoi Lepapa v Abdirhaman Musa Said & Olkejuado County Council [2017] KEELC 3706 (KLR)

Environment and Land Court
27 January 2017
OAO. A. Angote
430 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 threw out a land injunction because the property owner was never served with the lawsuit, confirming orders made without service can be cancelled.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (O. A. Angote, J) on the 1st Defendant's Notice of Motion dated 23rd June 2016 in ELC 252 of 2011. The 1st Defendant, Abdirhaman Musa Said, sought to set aside an interim injunction granted by Thuranira Jaden, J on 29th September 2014 (issued 3rd December 2015) restraining him from constructing on, depositing materials on, or entering Plot No. 1313 (alleged to be Plot No. 1279), and further sought cross-examination of Michael Ndirangu, deponent of affidavits filed by the Plaintiff. The Applicant asserted he was never served with the Summons to Enter Appearance, the Plaint or the Application dated 21st September 2011, that he resides in Eastleigh, Nairobi, and not Ongata Rongai, and that he only learned of the order when he began depositing construction materials on the suit property. The Plaintiff filed no Replying Affidavit or grounds of opposition. The court held that the averments of non-service stood unrebutted, and that orders emanating from an unserved pleading must be set aside ex debito justitiae. The application was allowed in terms of prayers 1 and 3: the interlocutory injunction was set aside and costs awarded to the 1st Defendant. The prayer for cross-examination of the deponent was not granted. The suit itself remains pending.

Key legal issues

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01

Effect of non-service of pleadings on interlocutory orders

Holding

An order made without service on a party is liable to be set aside ex debito justitiae

Reasoning

The Plaintiff filed no Replying Affidavit or grounds of opposition, so the 1st Defendant's averments that he was never served with the Summons, Plaint and the Application of 21st September 2011 stood unrebutted. The court held that orders flowing from an unserved pleading must be set aside as of right, and allowed the application in respect of the injunction and costs, but not the cross-examination prayer.

p. 2

Legal principles established

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  • Where a party is not served with a pleading requiring a response, any order or decree emanating from such pleading should be set aside as of right (ex debito justitiae)

Court orders

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  1. 1.The order of the Court (Hon Justice B. Thuranira Jaden) given on 29th September 2014 and issued on 3rd December 2015 restraining the Applicant from erecting structures, depositing construction materials or entering the suit property is set aside
  2. 2.Costs of the Application awarded to the 1st Defendant/Applicant
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to set aside ex parte orders (ex debito justitiae)

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, "Phyllis Musoi Lepapa v Abdirhaman Musa Said & Olkejuado County Council [2017] KEELC 3706 (KLR)", Case Analysis (2017). E.L.C. 252 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3706/eng@2017-01-27

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