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ELCAllowedApplication dated 2 October 2018 (in suit re land parcel Njoro/Ngata Block 2/130)· [2019] KEELC 4402 (KLR)

Carol Construction Engineers Ltd v Naomi Chepkorir Langat [2019] KEELC 4402 (KLR)

Environment and Land Court
5 February 2019
MSMUNYAO SILA
925 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a defendant to serve a court application on a party living in the UK by courier, confirming courts can adapt procedural rules flexibly.

What this practically means

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Executive summary

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The defendant (applicant) in a land dispute over parcel Njoro/Ngata Block 2/130 applied on 2 October 2018, under Order 5 Rules 22(3), 25 and 27 of the Civil Procedure Rules, 2010, for leave to serve her application dated 15 September 2017 out of jurisdiction - namely upon intended 2nd defendant Martha Moraa Mayieka at her last known address in the United Kingdom. The applicant, wife of former registered proprietor Joel Kimitet Langat, had been allowed earlier to seek joinder of KCB, Martha Moraa Mayieka and Langat; the court had directed that all intended parties be served before the joinder application was heard. Martha's UK address was sourced from an affidavit she swore in Nakuru CMCC No. 1857 of 2000, and she was said to be a lecturer at a UK university. The plaintiff opposed, arguing that no efforts to trace Martha were disclosed, the address's currency was unproven, the Order 5 Rule 25 requirements were unmet, joinder was impermissible, and the issues were res judicata. The court held that the applicant had shown prima facie residence in the UK, that although Order 5 strictly covers service of summons it may be utilised with modifications for applications, and that courier service would suffice absent demonstrated prejudice. The application was allowed: leave to serve by established courier within 14 days, plus a hearing notice for the inter partes hearing. No orders as to costs. Dated 5 February 2019, Nakuru, before Justice Munyao Sila.

Key legal issues

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01

Service of an interlocutory application out of jurisdiction

Holding

Leave granted; service by established courier permitted

Reasoning

Order 5 strictly governs service of summons for a suit, not applications, but the court may adapt its provisions to applications. The applicant traced a UK address from an affidavit sworn by the intended defendant herself, establishing prima facie residence abroad. No contrary evidence was adduced, and the court found no prejudice to any party from courier service, rendering the elaborate summons procedure unnecessary.

p. 2

Legal principles established

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  • Order 5 of the Civil Procedure Rules, though directed to service of summons, may be utilised with modifications for service of applications out of jurisdiction, at the court's discretion.
  • Where a party's residence abroad is shown prima facie and no prejudice is demonstrated, service by established courier may suffice without the elaborate procedure for service of summons out of jurisdiction.

Court orders

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  1. 1.Leave granted to the applicant to serve the Motion dated 15 September 2017 through an established courier service within 14 days
  2. 2.A hearing notice to be served for the inter partes hearing of the application dated 15 September 2017 on a date to be given in court

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 Rules 22(3), 25 and 27
Jurisdiction invoked
Order 5 Rules 22(3), 25 and 27 of the Civil Procedure Rules, 2010

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, "Carol Construction Engineers Ltd v Naomi Chepkorir Langat [2019] KEELC 4402 (KLR)", Case Analysis (2019). Application dated 2 October 2018 (in suit re land parcel Njoro/Ngata Block 2/130). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4402/eng@2019-02-05

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