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ELCDismissedEnvironment and Land Court suit in which judgment dated 5th February, 2020 was delivered on 9th April, 2020 (number not stated in extract)· [2020] KEELC 702 (KLR)

Keiyo Teachers Co-operative Savings & Credit Society v Andrew Ojal & 7 others [2020] KEELC 702 (KLR)

Environment and Land Court
11 November 2020
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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An Kenyan court refused to undo orders in a land case because the excluded party suffered no real prejudice, even though it was never served.

What this practically means

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Executive summary

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The 8th Defendant moved the court by Notice of Motion dated 27th June, 2020 seeking to set aside the proceedings on the 7th Defendant's stay application dated 21st April, 2020 and the resulting ruling of 20th May, 2020, and to be granted adequate time to respond. It complained that it was never served with the stay application or ruling, learned of them only through an Attorney General letter of 19th June, 2020, and that the stay orders would occasion it irreparable damage by affecting 200 acres allocated to it for an ultra-modern hospital. The 7th Defendant opposed, stating the stay application concerned only the Plaintiff and Attorney General, sought no orders against the 8th Defendant, and that nothing in the stay order prevented the hospital's construction. The 1st to 6th Defendants supported the motion, contending they remained substantive parties and that their replying affidavit and submissions filed on 7th May, 2020 were ignored in the ruling. Framing two issues, the court found no evidence of service on the 8th Defendant and the 7th Defendant conceded non-service. However, the stay application sought nothing specific against the 8th Defendant, the court had during site visits found the 8th Defendant's 200 acres to be on a separate parcel, and no prejudice was shown. It also confirmed that the 1st to 6th Defendants' filings came after the ruling date was fixed without leave. Dismissing the application, the court ordered costs to abide the outcome of the 7th Defendant's pending appeal and directed digital transmission of the ruling.

Key legal issues

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01

Whether non-service of the stay application on the 8th Defendant justified setting aside the proceedings and ruling

Holding

No. The stay application sought no specific order against the 8th Defendant, the ruling did not affect it, and non-service alone is not a sufficient basis to set aside the proceedings

Reasoning

The court found no evidence of service on the 8th Defendant and the 7th Defendant conceded this. However, the stay application contained nothing seeking any order against the 8th Defendant, the 200 acres allocated to the 8th Defendant were found during court visits to be separate from the suit land, and nothing in the ruling affected the 8th Defendant or the other pending suits. Prejudice being absent, setting aside was unwarranted.

p. 3
02

Whether the 1st to 6th Defendants' replying affidavit and submissions filed after the ruling date was fixed were wrongly ignored

Holding

Yes, they were outside the record, but the 1st to 6th Defendants had not formally moved the court for the orders they now support

Reasoning

The replying affidavit of Barnaba Kipsang Keino and submissions were filed on 7th May 2020, a day after the court fixed the ruling date on 6th May 2020, with no leave or window granted. The ruling of 20th May 2020 therefore could not consider them. Although the Litigation Counsel supported the 8th Defendant's motion, they had neither formally sought the orders nor indicated an intention to appeal the judgment.

p. 3

Legal principles established

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  • A party filing pleadings or court processes is obliged to serve all parties, but non-service alone does not warrant setting aside proceedings where the party served shows no prejudice
  • Once a date for ruling or judgment is fixed, the file goes to the judicial officer and documents filed thereafter without leave cannot be considered

Court orders

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  1. 1.The 8th Defendant's application dated 27th June, 2020 and filed on 29th June, 2020 is dismissed
  2. 2.Costs to abide the outcome of the pending appeal
  3. 3.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 1C, 3A and 80
  • Civil Procedure RulesOrder 45 Rule 1
Jurisdiction invoked
Inherent jurisdiction and review powers under Sections 1A, 1B, 1C, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (as invoked by the applicants)

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, "Keiyo Teachers Co-operative Savings & Credit Society v Andrew Ojal & 7 others [2020] KEELC 702 (KLR)", Case Analysis (2020). Environment and Land Court suit in which judgment dated 5th February, 2020 was delivered on 9th April, 2020 (number not stated in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/702/eng@2020-11-11

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