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ELCDismissedNot stated in judgment· [2018] KEELC 1256 (KLR)

Lydia Wanjiru Mwangi & another v Esther Wachu Muruga [2018] KEELC 1256 (KLR)

Environment and Land Court (acting on a Notice of Motion in a pending suit)
19 October 2018
LGL. Gacheru
2,235 words in judgment
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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 judgment determines a Notice of Motion dated 11th September 2017 by the Defendant, Esther Wachu Muruga, seeking to set aside, vary or vacate injunctive orders issued on 13th April 2017 in a suit by members of Wiyumiririe Women Group concerning land parcel LR.No.10087/108 in Thika Municipality. The Defendant argued she was never served with Summons to Enter Appearance or the injunction application, that the Affidavit of Service sworn by process server Gibson Wamweya Mburu was misleading, and that she was denied a chance to be heard. The application, premised on Order 40 Rule 7 of the Civil Procedure Rules and Sections 3A and 63E of the Civil Procedure Act, was opposed by the 1st Plaintiff, Lydia Wanjiru Mwangi, who maintained service was properly effected on 30th March 2017. The court, L. Gacheru J, reviewed the Affidavit of Service and found, drawing on the Naomi Wanjiru Wachira decision, that the Defendant had not disputed the detailed personal and home information in the affidavit, so service was valid. Applying the setting-aside principles from Yamko Yadpaz Industries v Kalka Flowers, the court held the disputed facts about the alleged purchase of land from the late George Muruga Kiari could only be resolved at trial, and that justice required preserving the suit property by maintaining the injunction. The court also noted the Defendant's unexplained delay in moving the court. The application was dismissed entirely with costs to the Plaintiffs, and the parties were directed to comply with Order 11 within 60 days, with the matter thereafter to proceed to pre-trial directions and main hearing.

Key legal issues

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01

Whether service of summons and hearing notice was properly effected

Holding

The court accepted the Affidavit of Service of the process server, Gibson Wamweya Mburu, and found the Defendant was duly served

Reasoning

The process server deposed on how he visited the Defendant's rural home and served her with the pleadings. The Defendant did not dispute the details about her home and personal information contained in the affidavit. Following the Naomi Wanjiru Wachira decision, the court reasoned that the process server could only have gathered such detailed information if it were true, so the service was valid.

p. 3
02

Whether the injunction orders of 13th April 2017 should be set aside

Holding

The application to set aside was dismissed; the injunction orders were maintained to preserve the suit property pending the main suit

Reasoning

Though the discretion under Order 40 Rule 7 is wide, it must be exercised judicially to do justice. The Plaintiffs alleged purchase of part of the suit property from the late George Muruga Kiari, while the Defendant (administratrix of his estate) denied any sale. These disputed facts could only be resolved at the main trial; preservation via injunction served justice. The Defendant's unexplained delay from June to September 2017 also weighed against her.

p. 3
03

Delay in bringing the application

Holding

The delay in filing the application was unexplained and counted against the Applicant

Reasoning

The Memorandum of Appearance was filed in June 2017 but the application was filed on 11th September 2017 with no explanation for the delay. The court observed the Applicant should instead have sought expeditious disposal of the main suit by complying with Order 11 and setting the suit down for hearing.

p. 3

Legal principles established

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  • The court's discretion to discharge, vary or set aside an injunction order under Order 40 Rule 7 must be exercised judicially
  • Disputed facts as to ownership and sale of land cannot be resolved on an interlocutory application but at the main suit, and the suit property may be preserved pending determination

Court orders

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  1. 1.The Notice of Motion dated 11th September 2017 is dismissed entirely with costs to the Plaintiffs/Respondents
  2. 2.The parties to comply with Order 11 within a period of 60 days from the date of the order
  3. 3.Thereafter the matter to be fixed for Pre-trial directions before the Deputy Registrar and then given a hearing date for the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63E
  • Civil Procedure RulesOrder 11

Cases cited (8)

  • Nyutu & Others vs Gatheru & Others
    (1990) KLR 554
  • Yamko Yadpaz Industries Ltd vs Kalka Flowers Ltd
    (2013) eKLR
  • Shah vs Mbogo
    (1967) EA 116
  • Shabir Din vs Ram Parkash Anand
    (1955) 22 EACA 48
  • Mbogo vs Shah
    (1968) EA 93
  • Kanji Naran vs Yelji Ramji
    (1954) 21 EACA 20
  • Smith vs Middleton
    [1972] SC 30
  • In the Matter of the Estate of Naomi Wanjiru Wachira vs Titus Muraguri Warothe & 2 Others (Nyeri Succession Cause No.122 of 2002)
    (2009) eKLR
Jurisdiction invoked
Order 40 Rule 7 of the Civil Procedure Rules; Sections 3A and 63E of the Civil Procedure Act (inherent power)

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, "Lydia Wanjiru Mwangi & another v Esther Wachu Muruga [2018] KEELC 1256 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1256/eng@2018-10-19

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