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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 1075 (KLR)

Sicily Mikui Mulwa v John Mulwa Kathanzu & another [2022] KEELC 1075 (KLR)

Environment and Land Court
3 March 2022
2,499 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside an injunction granted without proof the defendant was served, ruling no one should be condemned unheard.

What this practically means

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Executive summary

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The 2nd Defendant, David Mutinda Mutuku, moved the court by Notice of Motion dated 14th May 2018 seeking to set aside exparte temporary injunction orders issued on 25th May 2017 restraining the defendants from dealing with land parcel Masinga/Kangonde/2352. He contended that he purchased 3 acres of the suit property from the 1st Defendant between 2013 and 2016 for Kshs. 3,340,000, was never served with the application or hearing notices, and only learnt of the orders on 17th February 2018 when they were pasted on his gate, by which time he had fenced the property and demolished a shop. He alleged the process server committed perjury and sought cross-examination of the server, who twice failed to attend court. The Plaintiff/Respondent opposed, asserting the property was matrimonial property held in trust by the 1st Defendant, and that she had served court orders on both defendants. The court found the affidavits of service internally contradictory - the process server purportedly served documents on 7th November 2016 before receiving them on 25th November 2016 - and failed to state who identified the defendant. With service not demonstrated and the process server absent for cross-examination, the court held that setting aside orders made without service is a matter of right, as no one should be condemned unheard. Additionally, under Order 40 Rule 6, the temporary injunction had lapsed after twelve months without determination of the suit, having been in force over five years. The application was allowed, the orders of 25th May 2017 set aside, with costs to abide the outcome of the suit.

Key legal issues

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01

Whether the 2nd Defendant was duly served with the application and hearing notices leading to the exparte orders of 25th May 2017

Holding

Service was not demonstrated; the affidavits of service were internally inconsistent and defective, and the process server failed to attend court for cross-examination

Reasoning

The affidavit of service dated 28th November 2016 claimed the process server received the documents on 25th November 2016 yet served them on 7th November 2016, an impossibility. The 5th December 2016 affidavit did not state who identified the defendant. The process server twice failed to appear for cross-examination despite a court order, so the plaintiff failed to demonstrate due service.

p. 3
02

Whether the exparte injunction orders of 25th May 2017 should be set aside

Holding

Yes - both because the 2nd Defendant was not duly served and because the temporary injunction had lapsed under Order 40 Rule 6 having been in force for over five years without the suit being determined

Reasoning

A party cannot be condemned unheard; setting aside orders made without service is a matter of right. Additionally, temporary injunctions lapse after twelve months if the suit is not determined, and these orders had been in force over five years, no longer serving the interests of justice.

p. 3

Legal principles established

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  • An order made without service of summons to enter appearance is a nullity which must be set aside ex debito justiciae
  • Setting aside orders made without service is a matter of right as no one should be condemned unheard
  • An interlocutory injunction lapses where the suit is not determined within twelve months unless the court orders otherwise

Court orders

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  1. 1.The application dated 14th May 2018 is allowed
  2. 2.The orders of the court issued on 25th May 2017 are set aside
  3. 3.Costs shall abide the outcome of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 40 Rule 6
  • Civil Procedure RulesOrder 40 Rule 4(3)
  • Civil Procedure RulesOrder 5 Rule 15(1)
  • Civil Procedure RulesOrder 5 Rule 16

Cases cited (5)

  • Wachira Karani vs Bildad Wachira
    (2016) eKLR
  • Ali Bin Khamis v. Salim Khamis Korobe & 2 Others
    [1956] 23 EACA 195
  • Gulf Fabricators v County Government of Siaya
    [2020] eKLR
  • James Kanyita Nderitu v Maries Philotus Ghika & Another
    [2016] eKLR
  • Shah vs Mbogo and Another
    [1967] EA 116
Jurisdiction invoked
Inherent jurisdiction of the court and Order 40 Rule 7 of the Civil Procedure Rules

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, "Sicily Mikui Mulwa v John Mulwa Kathanzu & another [2022] KEELC 1075 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1075/eng@2022-03-03

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