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ELCPartially AllowedMiscellaneous Application - Notice of Motion dated 20th September, 2019 (arising from Motion dated 17th April, 2018)· [2020] KEELC 356 (KLR)

Joel Madahana v Director of Forest Services [2020] KEELC 356 (KLR)

Environment and Land Court
9 December 2020
2,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside an ex parte charcoal-transport order because the other side was never properly served, and struck out the application for lacking a validly commissioned affidavit.

What this practically means

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Executive summary

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The Respondent, the Director of Forest Services/Kenya Forest Service, moved the Environment and Land Court at Eldoret by Notice of Motion dated 20th September, 2019 seeking review and setting aside of an ex parte order of 4th May, 2018 (extracted 14th May, 2018) allowing Joel Madahana to transport charcoal harvested in Eldoret and Kitale before the moratorium of 28th February, 2018. The Respondent contended it was never served with the application, summons to witness or hearing notice; that the officer allegedly served, Solomon Mibey, had retired in 2016; that the named Respondent, the Director of Forest Services, no longer existed in law after the repeal of the Forest Act 2005; that the application was premature as statutory mechanisms under the Forest Conservation and Management Act had not been exhausted; and that the Applicant's supporting affidavit was commissioned by an advocate who was neither a Commissioner of Oaths nor certified to practise. The Applicant opposed, arguing lack of locus standi of the Respondent and that the court should do substantive justice. The court found there was no or no proper service, that the order was obtained on a misleading claim of service, that the named Respondent did not exist when proceedings were filed, that the supporting affidavit was a nullity, and that the application was premature. The court allowed the Respondent's motion with costs and struck out the Applicant's Motion dated 17th April, 2018 with costs.

Key legal issues

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01

Whether the order of 4th May, 2018 should be reviewed/set aside for non-service

Holding

Yes - the court found there was no service or proper service of the application, summons to witness and hearing notice on the Respondent, and the order was obtained on a misleading claim of service

Reasoning

The process server's affidavit was undated and referred to serving Solomon Mibey, who had retired in 2016; the deposition to that effect was unrebutted. Summons issued on 3rd May, 2018 could not have been served on 27th April, 2018, and no certificate of posting was annexed. Service being unproven, the exparte order was properly reviewable so the Respondent could be heard under Article 50.

p. 3
02

Whether the Respondent, named as Director of Forest Services, is a legal entity capable of being sued

Holding

No - the office of Director of Forest Service ceased to exist upon repeal of the Forest Act 2005 by the Forest Conservation and Management Act, 2016

Reasoning

The Forest Act was repealed by Section 76 of the Forest Conservation and Management Act No. 34 of 2016 which came into operation in 2017. The transition provisions do not preserve the office of Director of Forest Service. The Conservator of Forests is established under Section 14(1) of the new Act. Hence the named Respondent did not exist when the proceedings were filed.

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03

Validity of the Applicant's supporting affidavit

Holding

The supporting affidavit was a nullity as the commissioner was neither a Commissioner of Oaths nor certified to practise law

Reasoning

A letter from the Law Society of Kenya dated 2nd December, 2019 confirmed Ronoh Nicholas Kiprotich was not duly appointed a Commissioner of Oaths and last took out a practising certificate in 2017. Since he commissioned the Applicant's supporting affidavit, no valid affidavit supported the Motion dated 17th April, 2018, warranting striking out.

p. 3

Legal principles established

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  • Where an exparte order is obtained without service on the Respondent, the court has jurisdiction to review and set it aside so the Respondent may be heard under Article 50 of the Constitution
  • A judge who has left the station, the court retains jurisdiction to review that judge's order under Order 45 Rule 2(2)
  • A supporting affidavit commissioned by a person not duly appointed a Commissioner of Oaths is incapable of supporting an application

Court orders

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  1. 1.The Respondent's Notice of Motion dated 20th September, 2019 is allowed as prayed with costs (review/setting aside of the order of 4th May, 2018 extracted on 14th May, 2018)
  2. 2.The Applicant's Notice of Motion dated 17th April, 2018 is struck out with costs for want of a valid supporting affidavit

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45; Order 45 Rule 2(2); Order 10 Rule 11; Order 1; Order 19(3)(1); Order 5 Rule 15
  • Constitution of KenyaArticles 159(2), 162(2)(b), 48, 50
  • Environment and Land Court ActSection 13(1) and (2)
  • Forest (Charcoal) Rules, 2009Regulations 9(2), 14(3)
  • Forest Conservation and Management Act No. 34 of 2016Sections 70(1), 76, 14(1); Part XI (transition)
  • Forest Act 2005Repealed

Cases cited (4)

  • Naran Vs Velji Ramji
    (1954) 21 EACA 20
  • Republic Vs Principal Magistrate, Lamu and Another Ex-parte Kenya Forest Service
    [2016] eKLR
  • Apex International Limited & Anglo Leasing and Finance Ltd Vs Kenya Anti-Corruption Commission
    (2012) eKLR
  • Raila Odinga & Others Vs Independent Electoral and Boundaries Commission & Others
    Nairobi Petition No. 5 of 2013 [2013] eKLR
Jurisdiction invoked
Order 45 Rule 2(2) of the Civil Procedure Rules (review of orders issued by Ombwayo, J who had left the station); Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act contested by the Respondent

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, "Joel Madahana v Director of Forest Services [2020] KEELC 356 (KLR)", Case Analysis (2020). Miscellaneous Application - Notice of Motion dated 20th September, 2019 (arising from Motion dated 17th April, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/356/eng@2020-12-09

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