County Government of Meru v Mitunguu Market Stores Self Help Group through its Chairman Benard Mugambi & another [2021] KEELC 1986 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the appellant was denied the right to be heard
No; the appellant's application dated 19.11.2018 seeking to set aside the orders of 18.10.2018 was heard and determined, which negates the allegation that it was never heard.
The right to be heard is a cardinal rule of natural justice (audi alteram partem). However, the appellant itself filed an application seeking setting aside of the 18.10.2018 orders, which was heard via submissions and determined on 19.5.2019. The affidavit of service showed service effected on 2.10.2018. The appellant was also indolent, having filed no opposition to the application or suit by 18.10.2018.
Whether the orders of 18.10.2018 were final orders issued on a mention date
No; the orders were expressly temporary, to subsist until the determination of the suit.
The court quoted the orders verbatim and found they granted temporary injunction restraining demolition or interference with the plaintiff's stalls until the determination of the suit. The appellant's claim that final orders were issued was not a true reflection of the facts, so any grievances could be ventilated in the main suit where permanent injunction is sought.
Whether the trial magistrate exercised her discretion judiciously
Yes; the trial court properly considered the repercussions of setting aside the orders and correctly invoked Article 159(2) and sections 1A and 1B of the Civil Procedure Act.
The trial court weighed what would happen if the orders were set aside before trial: the defendants and those acting at their behest would be at liberty to do as they wished, failing to preserve the suit land. The invocation of the overriding objectives of substantive justice under sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution was proper, and no prejudice to the appellant was demonstrated.
Legal principles established
#- A party must be given a fair hearing before a decision adverse to it is made (audi alteram partem)
- Where a party has had an application heard and determined, an allegation that it was not heard is negated
- Courts may invoke sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution to render substantive justice, including issuing interim orders preserving the suit property pending full trial
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the 1st respondent
- On appeal from
- Trial court (magistrates' court, not named in the judgment)
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Environment and Land Court against a ruling of the trial court (specific enabling provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Meru v Mitunguu Market Stores Self Help Group through its Chairman Benard Mugambi & another [2021] KEELC 1986 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1986/eng@2021-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.