Peninnah Inyanje Karungu (Suing as the Executrix of the Estate of John Ngige Karungu) v Chris Masira & another [2018] KEELC 2679 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's bid to undo interim orders because she denied being served when her own signed acknowledgment proved otherwise.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was one for review or for setting aside of ex parte orders
Though a prayer for review was included, the substance was an application to set aside orders made ex parte, as no grounds of review such as discovery of new matter or error apparent on the face of the record were demonstrated
The court read the application and supporting affidavit together and found no evidence of the traditional grounds of review - no discovery of new and important matter or evidence, nor mistake or error apparent on the face of the record. The applicant's true complaint was inadequate opportunity to present her case, which is a ground for setting aside ex parte orders under the court's discretion, not for review.
Whether the 2nd defendant had adequate notice of the inter partes hearing
The court accepted the plaintiff's account that the applicant was served on 8th December 2016, her signature acknowledging service being dated that day, giving her ample time before the hearing on 16th December 2016
An affidavit of service filed on 16th December 2016 showed service on 8th December 2016, with the extracted order of 6th December 2016 annexed and acknowledged by the applicant's dated signature. Had she attended the registry to file a response before 16th December 2016, she would have learned the matter was at ELC Eldoret. She had not filed any response as at the hearing date.
Whether the applicant satisfied the duty of full and frank disclosure for equitable relief
The applicant failed the test of full and frank disclosure, and the application was dismissed with costs
Setting aside of ex parte orders is an equitable relief. A litigant invoking equity must make a full and frank disclosure of all material facts. Given the service record and the applicant's own acknowledged signature, the court was not satisfied this duty was met, and declined the discretionary relief.
Legal principles established
#- A litigant seeking an equitable relief such as setting aside of ex parte orders must make full and frank disclosure
- Where no traditional grounds of review (new matter, error apparent on the face of the record) are established, an application praying for review is properly treated as one for setting aside of ex parte orders, governed by the discretion in Mbogoh & Another v Shah
Court orders
#- 1.Notice of Motion dated 22nd December 2016 dismissed with costs to the plaintiff
- 2.Parties encouraged to move with speed to prepare the main suit for hearing
- Jurisdiction invoked
- Inherent discretion of the court over its own interlocutory orders; application under the Civil Procedure Rules for review/setting aside of ex parte orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peninnah Inyanje Karungu (Suing as the Executrix of the Estate of John Ngige Karungu) v Chris Masira & another [2018] KEELC 2679 (KLR)", Case Analysis (2018). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2679/eng@2018-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.