Dinara Developers Limited v Malcedian Properties Limited & another [2019] KEELC 304 (KLR)
The bottom line
#A Kenyan court set aside an order removing a land caution because the property owner never received proper notice before the ruling was made.
What this practically means
#Executive summary
#Key legal issues
#Properness of service
Service was not proper; the affidavit of service did not indicate the time of service or the person who identified the defendant, contrary to Order 5 Rule 15(1).
The affidavit of service by Mercy K. Mberia did not state the time when the 1st Defendant was served, nor the name of anyone who identified the defendant or its offices. The defendant also denied that its offices were at the stated location, shifting the burden onto the process server. Following Said Abdala Azubedi v Samuel Mbugua Ikumbu, the court found the affidavit violated Order 5 Rule 15(1) and was improper.
Entitlement to reinstatement of the caution
The application succeeded because the court was only concerned with the irregularity of service, not the merits of the earlier removal application.
The plaintiff argued the applicant had no registrable interest having not proved payment of the purchase price, but the court held that the instant application was only about non-service leading to the 18th May 2018 ruling, not the merits. An order obtained without proper service cannot stand, so the ruling was set aside and the caution reinstated.
Legal principles established
#- Where service is disputed, the burden shifts to the process server to prove proper service, and an affidavit of service lacking the time of service and the identity of the person who identified the person served is defective.
- Orders made pursuant to a defective affidavit of service are irregular and must be set aside.
Court orders
#- 1.The Ruling and Order delivered on 18th May 2018 by Hon. Justice L. Gacheru removing the caution is set aside.
- 2.The Caution registered against parcel Thika Municipality Block 14/96 by the 1st Respondent/Applicant is reinstated.
- 3.Costs of the application to the 1st Respondent/Applicant.
- Jurisdiction invoked
- Inherent jurisdiction of the court to set aside orders obtained without proper service; civil procedure rules on service (Order 5 Rule 15(1) of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dinara Developers Limited v Malcedian Properties Limited & another [2019] KEELC 304 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/304/eng@2019-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.