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ELCPartially AllowedELC Constitutional Petition No. 4 of 2016 (formerly High Court Petition No. 4 of 2016)· [2022] KEELC 3501 (KLR)

Sirikwa Squatters Group v County Commisioner, Uasin Gishu & 4 others (Environment & Land Miscellaneous Case 25 of 2021) [2022] KEELC 3501 (KLR)

Environment and Land Court
11 May 2022
1,742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (E. Obaga, J) on the Applicants' Notice of Motion dated 9th July 2021 seeking review and setting aside of ex-parte orders issued on 30th June 2021, which had vacated orders granted to the Applicants on 28th June 2021 for police assistance to protect surveyors mapping out land vested in them by a judgment of 9th February 2017 in ELC Petition No. 4 of 2016 (as revised on 10th November 2017 to exclude public utilities). The 30th June 2021 orders were made in chambers on an application by Fanikiwa Limited, a proposed interested party not yet admitted to the proceedings, and without service on the Applicants. The court framed one issue: whether grounds existed to review the orders of 30th June 2021 and whether the Applicants should be heard on Fanikiwa Limited's application of 29th June 2021. Relying on James Kanyiita Nderitu and Gulf Fabricators, the court held that ex-parte orders affecting a party who was neither served nor heard are a nullity. It allowed the application, reviewing the orders of 30th June 2021 so that the Applicants' Notice of Motion of 28th June 2021 was reinstated solely for purposes of hearing Fanikiwa Limited's application dated 29th June 2021, and awarded the Applicants the costs of the application. The merits of Fanikiwa Limited's objections, including the alleged non-disclosure of Court of Appeal stay orders, were left for that inter-parties hearing.

Key legal issues

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01

Whether the ex-parte orders of 30th June 2021, made without service on the Applicant, should be set aside

Holding

Yes; the orders affected the Applicant without affording it a hearing and were liable to be reviewed

Reasoning

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.

p. 4
02

Respondent's contention that the court lacks jurisdiction over a matter before the Court of Appeal

Holding

Not determined on the merits; the contention was a matter to be ventilated at the hearing of the application dated 29th June 2021

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Applicant shall have costs of this application

Authorities

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Cases cited (4)

  • James Kanyiita Nderitu & another -Vs- Marius Philotas Ghikas & another
    (2016) eKLR
  • Ali Bin Khamis v. Salim Bin Khamis Kirobe & others
    (1956) 1 EA 195
  • Craig v Kanseen
    (1943) 1 All ER 108
  • Gulf Fabricators -Vs- County Government of Siaya
    (2020) eKLR
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

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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, "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.