Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (Malindi ELC; Notice of Motion dated 18th May 2020)· [2020] KEELC 816 (KLR)

Hollander Ned Security v Jacqueline Wangui Hill & 2 others [2020] KEELC 816 (KLR)

Environment and Land Court
5 November 2020
JOJ.O. Olola
1,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The 1st and 2nd Defendants, Jacqueline Wangui Hill and Mibo Ceramics Ltd, moved the court by Notice of Motion dated 18th May 2020 seeking to set aside orders issued on 8th October 2019 restraining them from dealing with Plot Nos. 4805, 4806 and 4807 Malindi (Ashok Apartments), and for leave to defend the Plaintiff's (Hollander Ned Security's) application dated 29th March 2018, which had sought a temporary injunction. The Defendants contended they were unaware of the application because the 1st Defendant was in prison between 2nd April 2018 and 14th August 2019 and was never notified; that the orders were issued without a hearing; and that the Plaintiff had since collected rents and degraded the property. The Plaintiff opposed, asserting double service (6th April and 23rd April 2018) and accusing the Defendants of delay and of selling apartments to evade payment. The court, per J.O. Olola J, applied Order 10 Rule 11 and the Court of Appeal's principles in Pithon Waweru Maina and James Kanyita Nderitu. It found the process server's affidavit of service at Malindi G.K. Prison unconvincing - no evidence of the visit, no identified officer, no explanation of identification - and noted the 2nd Defendant company was never served. Service being improper, the ex parte orders were irregular and were set aside ex debito justiae as a matter of right, without considering triable issues or delay. The application was allowed, the 29th March 2018 application was directed to be heard afresh inter partes, and the Defendants were awarded costs.

Key legal issues

#
01

Whether service of the application dated 29th March 2018 on the Defendants was proper

Holding

Service on the 1st Defendant while in prison was not proved, and the 2nd Defendant, a separate legal entity, was never served; consequently service was improper.

Reasoning

The process server's affidavit did not evidence a prison visit, did not identify the Officer-in-Charge or the person who called out the 1st Defendant, and gave no explanation of how he identified her. The 2nd Defendant, being a company distinct from the 1st Defendant, was admittedly not served with the suit papers. Service being unproved, the ex parte orders were irregular.

p. 2
02

Consequences of irregular ex parte orders

Holding

An irregular default judgment or order is set aside as of right, ex debito justiae, irrespective of triable issues or delay.

Reasoning

Relying on James Kanyita Nderitu v Marios Philotas Ghikas, the court held that where a party is condemned without notice or an opportunity to be heard, the judgment is a nullity in effect; the court may even set it aside suo motu and need not consider the merits of the intended defence or inordinate delay, because the right to be heard is fundamental.

p. 2

Legal principles established

#
  • A judgment or order entered against a party who was not served or properly served is irregular and must be set aside ex debito justiae, as a matter of right, without inquiry into triable issues or delay.

Court orders

#
  1. 1.Application dated 18th May 2020 allowed
  2. 2.Orders issued on 8th October 2019 set aside
  3. 3.Plaintiff's application dated 29th March 2018 to be fixed afresh for hearing in the presence of both parties
  4. 4.1st and 2nd Defendants granted costs of the application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (5)

  • Pithon Waweru Maina –vs- Thuka Mugiria
    (1982-88) 1 KAR 171
  • Patel –vs- EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –vs- Mbogo
    (1967) EA 116
  • Shabir Din –vs- Ram Parkash Anand
    (1955) 22 EACA 48
  • James Kanyita Nderitu & Another –vs- Marios Philotas Ghikas & Another
    Civil Appeal No. 6 of 2015 eKLR
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules (general power to set aside ex-parte orders/judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hollander Ned Security v Jacqueline Wangui Hill & 2 others [2020] KEELC 816 (KLR)", Case Analysis (2020). Not stated in judgment (Malindi ELC; Notice of Motion dated 18th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/816/eng@2020-11-05

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