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ELCPartially AllowedNot stated in the judgment (application dated 11 October 2017)· [2018] KEELC 4390 (KLR)

Said Abdala Azubedi v Samuel Mbugua Ikumbu [2018] KEELC 4390 (KLR)

Environment & Land Court
15 February 2018
MSMUNYAO SILA
2,143 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 cancelled an injunction won through improper court document service, showing defective service paperwork can undo court orders entirely.

What this practically means

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Executive summary

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The defendant/applicant moved the Environment and Land Court at Nakuru by an application dated 11 October 2017 seeking to set aside the purported service of process effected on 11 July 2015, the ex-parte hearing and ruling of 22 September 2015 and all consequential orders of injunction, alternatively a declaration that the injunction had lapsed, and leave to file a defence and counterclaim. The underlying suit was filed by the plaintiff on 22 June 2015 claiming specific performance of a sale agreement over Nakuru Municipality Block 5/133 for Kshs. 75,000,000/=, together with a permanent injunction, and an interlocutory injunction was granted ex-parte on 22 September 2015 after service by process server Mathew Musotsi. The defendant contended he was never served, having moved from the stated residence in 2013, and attacked the affidavit of service for lacking the time of service, the identity of the person who identified him, and other particulars. The court agreed that the affidavit violated Order 5 Rule 15(1) of the Civil Procedure Rules, 2010, since it neither stated the time of service nor named the person who identified the person served, and the process server did not claim to know the defendant. On that ground alone the court set aside the affidavit of service, the purported service, and all ex-parte orders made on 22 September 2015. The court declined to rule on the alleged lapse of the injunction under Order 40 Rule 6 and on the competency of the plaint for want of signature and date, as these were not substantive prayers. The defendant was granted 14 days to file a defence and awarded costs of the application.

Key legal issues

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01

Validity of the affidavit of service under Order 5 Rule 15(1)

Holding

The affidavit of service was defective because it did not state the time of service nor the name and address of the person who identified the person served, and the process server did not state that he personally knew the defendant

Reasoning

Order 5 Rule 15(1) requires the serving officer to swear an affidavit stating the time and manner of service and the name and address of any person identifying the person served. The affidavit here gave the date and place but not the time of service, and since the process server did not claim to know the applicant, he needed to state who identified him. Without this, the person served could have been somebody other than the defendant.

p. 2
02

Consequence of defective service on ex-parte orders

Holding

The purported service of 11 July 2015 and all consequential ex-parte orders made on 22 September 2015 were set aside, with leave to the defendant to file a defence

Reasoning

Where service is set aside, all orders founded on that service must fall. The court set aside the service and the ex-parte injunction orders, and granted the defendant leave to file his defence within 14 days, restoring the inter partes character of the proceedings.

p. 2

Legal principles established

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  • An affidavit of service must state the time of service and the name and address of the person identifying the person served, especially where the process server does not personally know the defendant; non-compliance renders the service liable to be set aside
  • Orders made pursuant to defective service must be set aside together with the service

Court orders

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  1. 1.The purported service effected on 11 July 2015 upon the defendant/applicant is set aside
  2. 2.The ex-parte orders made on 22 September 2015 are set aside
  3. 3.The defendant is at liberty to file defence within 14 days
  4. 4.The defendant shall have the costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 Rule 15(1)
  • Civil Procedure Rules, 2010Order 40 Rule 4(3)
  • Civil Procedure Rules, 2010Order 40 Rule 6

Cases cited (2)

  • Remco Limited vs Mistry Jadva Parbat & Co. Ltd & 2 Others
    Nairobi HCCC No. 171 of 2001
  • R vs Commissioner of Land & Others
    Mombasa H.C Civil Misc. Application Number 273 of 2009
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under the Civil Procedure Rules, 2010 (Order 5 Rule 15(1) on affidavits of service)

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, "Said Abdala Azubedi v Samuel Mbugua Ikumbu [2018] KEELC 4390 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 11 October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4390/eng@2018-02-15

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