County Government of Tana River v Mohamed Godhana & 3 others [2019] KEELC 629 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside injunction orders against a defendant who was never properly served, confirming no one should lose property rights unheard.
What this practically means
#Executive summary
#Key legal issues
#Whether service of process on the 5th Defendant was proved
The affidavit of service was contradicted by the 5th Defendant's assertion that he does not reside in the area where he was allegedly served, and the Plaintiff did not contest that statement
The process server averred that he served the 5th Defendant at Madogo with the help of the Area Ward Administrator, but the 5th Defendant asserted he resides in Nairobi and has no residence in Madogo. The Plaintiff did not contest that assertion. Combined with the fact that the 5th Defendant was not in court when the orders issued, the court was not satisfied service was effective.
Whether the interlocutory orders of 2nd October 2018 should be set aside
Yes, in so far as they affect the 5th Defendant, because natural justice requires that no party be condemned unheard; but the suit property remains preserved pending inter-partes hearing
Applying Patel v East Africa Cargo Handling Services, the court's overriding concern is to do justice. Since the 5th Defendant was allegedly unaware of the proceedings, it was fair and just to give him an opportunity to present his case, while preserving the suit property in the interim.
Legal principles established
#- A party should not be condemned unheard; before adverse orders are made a party must be given an opportunity to be heard
- The court will not usually set aside a regular judgment unless satisfied there is a defence on the merits, and the court's main concern is to do justice to the parties
Court orders
#- 1.The orders granted by the court on 2nd October 2018 are set aside in so far as they relate to the 5th Defendant/Applicant
- 2.The Plaintiff is directed to serve the 5th Defendant with the application dated 28th August 2018 together with all other suit papers within 7 days
- 3.The 5th Defendant shall have 14 days after service to file his response to the application
- 4.Pending the hearing inter-partes of the application dated 28th August 2018 between the Plaintiff and the 5th Defendant, Prayer No. 2 of that application is allowed
- 5.The costs of this application shall be in the cause
- Jurisdiction invoked
- Inherent powers of the court to set aside interlocutory orders in the interest of justice; not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Tana River v Mohamed Godhana & 3 others [2019] KEELC 629 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/629/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.