Johnstone Wycliffe Ambani & another v Henry Lubanga Mwimali & another [2018] KEELC 4785 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside land orders made without proper service and threw out a jail bid for contempt, restoring the parties' right to be heard.
What this practically means
#Executive summary
#Key legal issues
#Validity of service and right to be heard
The court found that service was doubtful and that the defendants were entitled to be heard, justifying setting aside the ex parte proceedings, ruling and consequential orders
The affidavit of service by Anthony Masyongo Indeche alleged both defendants were served on 20th March 2017 at the 1st defendant's home at 10.30am. The 2nd defendant produced evidence (school attendance register) that he was teaching at Namundera Primary School that day, and the 1st defendant claimed he only learnt of the suit on 5th April 2017. The court held the possibility of improper service meant the ex parte proceedings and ruling of 9th May 2017 had to be set aside so the application of 26th September 2016 could be heard inter parties on merit.
Timeliness of the application to set aside
The application dated 11th July 2017 was filed timeously and without undue delay
The defendants explained that they instructed advocates to file an application on 26th April 2017 to arrest the impending ruling, but it was not brought to the judge's attention before the ruling of 9th May 2017. They only realised upon service of the extracted order on 16th June 2017 that the application had not been prosecuted, and filed the present application on 11th July 2017 - a period of under 30 days.
Contempt of court
The contempt application failed because the orders it sought to enforce were set aside
The plaintiffs sought committal of the defendants for disobeying the order of 9th May 2017 extracted on 24th May 2017, alleging the defendants ploughed land parcels E/WANGA/MALAHA/1163 and 1165. The defendants countered that the orders were ex parte, incapable of implementation absent demarcation of boundaries, and subject to their setting-aside application. The court dismissed the contempt application as without merit.
Legal principles established
#- Where service of a hearing notice is doubtful, it is fair and just to set aside ex parte proceedings so that a party is heard on merit
Court orders
#- 1.The ex parte proceedings, directions and or orders of 5th April 2017, and the resultant ruling delivered on 9th May 2017 and orders extracted on 24th May 2017 be set aside, reviewed and or vacated forthwith
- 2.The application dated 26th September 2016 be heard inter parties and the defendants/applicants be permitted to file their replying affidavits and be granted an opportunity to respond to and oppose the application so that it is determined on merit
- 3.Costs of the application dated 11th July 2017 be in the cause
- 4.The application dated 18th September 2017 (contempt) is dismissed
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act; Order 10 Rule 11, Order 12 Rule 7, Order 45 Rules 1 & 2 and Order 19 Rule 2 of the Civil Procedure Rules; Section 19(2) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnstone Wycliffe Ambani & another v Henry Lubanga Mwimali & another [2018] KEELC 4785 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4785/eng@2018-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.