Sicily Mikui Mulwa v John Mulwa Kathanzu & another [2022] KEELC 1075 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2nd Defendant was duly served with the application and hearing notices leading to the exparte orders of 25th May 2017
Service was not demonstrated; the affidavits of service were internally inconsistent and defective, and the process server failed to attend court for cross-examination
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.
Whether the exparte injunction orders of 25th May 2017 should be set aside
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
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.
Legal principles established
#- 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
#- 1.The application dated 14th May 2018 is allowed
- 2.The orders of the court issued on 25th May 2017 are set aside
- 3.Costs shall abide the outcome of the suit
- Jurisdiction invoked
- Inherent jurisdiction of the court and Order 40 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.