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ELCAllowedEnvironment & Land Case 18 of 2017· [2023] KEELC 20701 (KLR)

Kenya African National Traders & Farmers Union (Suing Through its Office Bearers Kimani Wanyoike - Chairman), Peter Mugeka Maina - Secretary General and Ibrahim Wanene - Treasurer) v Kilonzo & 8 others

Environment and Land Court
2 October 2023
BEB M Eboso
696 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside orders obtained without serving the other side, reaffirming that everyone must be heard before decisions go against them.

What this practically means

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Executive summary

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The plaintiff union sued nine defendants by originating summons dated 25/10/2012, later amended on 4/8/2016, seeking adverse possession orders. The 1st defendant, Zephania Kilungu Kilonzo, died on 16/5/2018. On 4/10/2023 the plaintiff obtained, ex parte, orders of revival and substitution under a notice of motion dated 3/10/2022, substituting David Muthama Kilonzo for the deceased 1st defendant. The substituted party then moved by notice of motion dated 14/12/2022 to set aside the revival and substitution orders, contending he was never served and was unaware of the application or the hearing. The plaintiff's replying affidavit sworn by Ibrahim Wanene addressed various issues but did not controvert the claim of non-service. The court, per B M Eboso J, held that the right to a fair hearing under Article 50(1) of the Constitution is of sacred importance, and that ex parte orders irregularly procured without service must be set aside, applying the Court of Appeal's decision in James Kanyiita Nderitu v Marios Philotas Ghikas. Finding that the plaintiff had procured the orders without service and without disclosing non-service, the court set aside the revival and substitution orders, directed that the application be heard inter partes on a date to be fixed, preserved the substituted party's right to respond, and ordered costs of the application dated 14/12/2022 to be in the cause.

Key legal issues

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Whether revival and substitution orders obtained without service on the affected party should stand

Holding

The orders were set aside because the plaintiff procured them without service and without disclosing non-service to the court

Reasoning

The court held the right to a fair hearing, underpinned by Article 50(1) of the Constitution, is of sacred importance. The plaintiff obtained revival and substitution orders against the 1st defendant's successor without serving the application or a hearing notice, and its replying affidavit did not deny non-service. Citing Court of Appeal authority, the court held irregularly procured ex parte orders must be set aside, and directed the application be heard inter partes.

p. 2

Legal principles established

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  • Ex parte orders irregularly procured without service of court process on the opposing party ought to be set aside

Court orders

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  1. 1.The orders of revival and substitution are set aside
  2. 2.The notice of motion dated 3/10/2020 (recorded as 3/10/2022 in the body) will be heard inter partes on a date to be set by the court
  3. 3.David Muthama Kilonzo will have the right to respond to the application
  4. 4.Costs of the application dated December 14, 2022 shall be in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit; interlocutory application decided under civil procedure and Article 50(1) of the Constitution

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, "Kenya African National Traders & Farmers Union (Suing Through its Office Bearers Kimani Wanyoike - Chairman), Peter Mugeka Maina - Secretary General and Ibrahim Wanene - Treasurer) v Kilonzo & 8 others", Case Analysis (2023). Environment & Land Case 18 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20701/eng@2023-10-02

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