Little Sisters of St. Therese of the Child Jesus – Registered Trustees v China National Aero – Technology International Engineering Corporation Limited & 2 others [2019] KEELC 1374 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner proved a constitutional violation by the respondents' interference with its drainage
The court held the petitioner proved its case on a balance of probability, finding the respondents' blocking of the drainage unconstitutional, arbitrary, wrongful, null and void
The petitioner showed that its medical services would be affected by the blocked drainage. The 2nd respondent had, by letter dated 28th March 2018, proposed a solution the petitioner accepted, but the respondents thereafter took no action and made no communication. The court weighed this non-performance against the petitioner's demonstrated risk of flooding, disruption of services and destruction of hospital property, concluding the petition was proven on a balance of probability and warranted both declaratory and mandatory relief.
Treatment of a petition undefended after service
Despite service, the respondents failed to enter appearance; the court proceeded to hear the petitioner, stressing the right to be heard and natural justice
The court noted that the respondents were served with the suit papers but failed to enter an appearance. Invoking the Supreme Court of India in Sangram Singh, it emphasised that procedure is grounded on natural justice: parties should not be condemned unheard or have proceedings continue behind their backs. Nonetheless, the court did not grant relief automatically; it examined the petitioner's evidence and satisfied itself that the claim was proven on a balance of probability before granting the declarations and mandatory injunction sought.
Confirmation of interim mandatory injunction
The mandatory injunction granted interim on 17.12.2018 was confirmed at the determination of the suit
A ruling dated 17.12.2018 had already granted a mandatory injunction compelling the respondents to restore the hospital's drainage, to last until determination of the suit. At the final determination, having found the petition proven, the court confirmed that order, requiring the respondents to immediately reinstate the drainage channel as it was, or in the alternative to execute the recommendations in the letter dated 28th March 2018. This preserved the interim position and made it final.
Legal principles established
#- Unrepresented parties are still entitled to the rules of natural justice; proceedings affecting life and property should not continue in their absence, but where served and absent, the petitioner need only prove its case on a balance of probability
- Blocking a hospital's drainage system, contrary to an agreed remedial proposal, is unconstitutional, arbitrary, wrongful, null and void and engages the petitioner's constitutional rights
Court orders
#- 1.Declared that the 1st, 2nd and/or 3rd respondents' actions of blocking the petitioner's drainage system are unconstitutional, arbitrary, wrongful, null and void and should be stopped forthwith
- 2.Confirmed the order of mandatory injunction issued on 17.12.2018 compelling the respondents to immediately reinstate the hospital's drainage channel as it then was, or in the alternative execute the recommendations in the letter dated 28th March 2018
- 3.Ordered that each party cater for their own costs of the suit
- Jurisdiction invoked
- Petition under the Constitution of Kenya 2010 invoking Articles 25, 26, 40 and 43(1)(a)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Little Sisters of St. Therese of the Child Jesus – Registered Trustees v China National Aero – Technology International Engineering Corporation Limited & 2 others [2019] KEELC 1374 (KLR)", Case Analysis (2019). Petition filed 13.11.2018 at Meru (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1374/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.