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ELCOtherEnvironment & Land Case E53 of 2019· [2023] KEELC 20639 (KLR)
Kubai Investments Ltd v Sian Enterprises Ltd
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·~1 min to read original · ~4 min briefThe bottom line
#A Kenyan court refused to decide preliminary objections because the other side was never properly served, sending the case back to Nakuru for a fair process.
What this practically means
#Executive summary
#This short ruling of the Environment and Land Court concerns two preliminary objections filed in Environment & Land Case E53 of 2019 between Kubai Investments Ltd (plaintiff) and Sian Enterprises Ltd (defendant). The objections, dated 27/4/2023 and 9/8/2019 (elsewhere recorded as 9/8/23), were directed to be disposed of together by written submissions, with objectors filing and serving submissions in ten days and respondents responding in like period. When the matter came up, the court found that the plaintiff's submissions were not on file, that the plaintiff is the respondent to the objections, and that the record did not permit ascertainment of whether the preliminary objections or supporting submissions had been served on the plaintiff. Counsel for some defendants had also not been served with the second objection. Holding that it was not proper to rule on the objections in those circumstances, particularly given the great ramifications of the orders sought, FM Njoroge J declined to determine the objections and instead referred the matter back to Nakuru, directing that the court there deal with the issues of service and filing of replies so as to give all parties a level ground in their participation. No costs order was made. The ruling was dated, signed and delivered at Malindi via electronic mail on 12 October 2023, despite the case being a Nakuru cause - an anomaly flagged in this brief. No authorities or statutes were cited.
Key legal issues
#01
Whether to determine preliminary objections in the absence of proof of service and the respondent's submissions
Holding
The court declined to rule, referring the issue of service and filing of replies back to the court at Nakuru
Reasoning
The record did not show that the preliminary objections or supporting submissions were served on the plaintiff, who is the respondent to the objections. The plaintiff's submissions were not on file. Because the ramifications of the orders sought were great, fairness required that all parties participate on a level ground before determination.
p. 1
Legal principles established
#- Where service of preliminary objections and supporting submissions cannot be ascertained from the record, the court should not rule on them but ensure all parties participate on a level ground
Court orders
#- 1.The court declined to make a ruling on the preliminary objections at this stage
- 2.The matter was referred back to Nakuru for the court there to deal with the issues of service and filing of replies to the preliminary objections
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (not expressly cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kubai Investments Ltd v Sian Enterprises Ltd", Case Analysis (2023). Environment & Land Case E53 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20639/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.