Sirikwa Squatters Group v County Commisioner, Uasin Gishu & 4 others (Environment & Land Miscellaneous Case 25 of 2021) [2022] KEELC 3501 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that court orders made without giving a party a chance to be heard can be overturned.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte orders of 30th June 2021, made without service on the Applicant, should be set aside
Yes; the orders affected the Applicant without affording it a hearing and were liable to be reviewed
The court found that when the orders of 30th June 2021 were made, neither the Respondent's lawyer on the application of 29th June 2021 nor the Applicant's lawyer was present, and the Applicant named as a respondent had not been served. Relying on James Kanyiita Nderitu and Gulf Fabricators, the court held that orders made without affording a party an opportunity to be heard are a nullity and justice requires both parties be heard on merits. The Respondent's objections were matters for the inter-parties hearing of its own application.
Respondent's contention that the court lacks jurisdiction over a matter before the Court of Appeal
Not determined on the merits; the contention was a matter to be ventilated at the hearing of the application dated 29th June 2021
The court observed that what the Respondent was raising in opposition (including non-disclosure of stay orders and jurisdiction) constituted submissions that ought properly to have been made during the inter-parties hearing of the Respondent's own application dated 29th June 2021, which had never been heard because the Applicant was not served. The court therefore did not rule on jurisdiction or the non-disclosure allegation, but restored the process so those issues could be argued.
Legal principles established
#- Ex-parte orders made against a party who was not served and not heard are a nullity which the court must set aside ex debito justitiae
- A party must be afforded an opportunity to be heard before orders affecting it are made
Court orders
#- 1.The orders of 30th June 2021 are reviewed to the extent that the Applicant's Notice of Motion dated 28th June 2021 is reinstated for purposes of hearing of the Respondent's Application dated 29th June 2021
- 2.The Applicant shall have costs of this application
- Jurisdiction invoked
- Inherent power of the court to review/set aside its own orders; review of orders issued ex-parte (Article 50 fair hearing invoked implicitly)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sirikwa Squatters Group v County Commisioner, Uasin Gishu & 4 others (Environment & Land Miscellaneous Case 25 of 2021) [2022] KEELC 3501 (KLR)", Case Analysis (2022). ELC Constitutional Petition No. 4 of 2016 (formerly High Court Petition No. 4 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3501/eng@2022-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.