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ELCPartially AllowedNot stated in judgment (interim orders of 1st December 2023 in a suit; related to ELC No. 762 of 2017 (OS))· [2024] KEELC 3553 (KLR)

Maisha Mabati Mills Limited v Farm Auto Spares Limited & 2 others; Gregory & another (Interested Parties) ((In their capacity as the Joint Receivers and Managers of Nalin Works Limited (In Receivers)) (Environment and Land Case E192 of 2023) [2024] KEELC 3553 (KLR)

Environment and Land Court
5 April 2024
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court set aside injunction orders because a party was served with a hearing notice showing the wrong time, confirming service errors can undo court orders.

What this practically means

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Executive summary

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The 1st Defendant applied by notice dated 8th January 2024 for review and setting aside of interim orders issued on 1st December 2023, arguing they were obtained through material non-disclosure and that he was condemned unheard after being served with an erroneous hearing notice indicating a 9.00am hearing when the matter was listed at 8.00am. The 1st Defendant also relied on the assertion that ownership of the subject property had been determined in ELC No. 762 of 2017 (OS). The Plaintiff opposed through a Notice of Preliminary Objection dated 15th January 2024 and a replying affidavit of Kaushik Pandit, arguing the application was a non-starter for want of a defence and that the orders were properly issued to absent but served Defendants. The application was canvassed by written submissions. The court framed two issues: the merit of the preliminary objection and whether the threshold for setting aside the orders was met. Relying on Mukhisa Biscuits, Nitin Properties and Oraro v Mbaja, the court held the preliminary objection was founded on facts rather than a pure point of law and dismissed it. On the second issue, invoking Order 40 Rule 7 and the principles in Patriotic Guards and Shah v Mbogo, the court found the misleading hearing notice meant there was no proper service and the 1st Defendant could not be faulted for absence. The interim orders of 1st December 2023 were set aside and the Plaintiff's application of 28th November 2023 was directed to be heard afresh inter partes, with each party bearing its own costs.

Key legal issues

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01

Whether the preliminary objection was a pure point of law

Holding

It was not; it rested on factual matters and failed

Reasoning

Applying Mukhisa Biscuits, Nitin Properties and Oraro v Mbaja, a preliminary objection must not be blurred with factual details liable to be contested or proved through evidence. The objection here questioned the applicant's inaction, a factual matter, so it could not stand.

p. 3
02

Whether the interim orders of 1st December 2023 should be set aside

Holding

Yes; the 1st Defendant was not properly served due to an erroneous hearing notice indicating a 9.00am instead of 8.00am hearing time, and was condemned unheard

Reasoning

Order 40 Rule 7 CPR empowers the court to discharge, vary or set aside an injunction order. The discretion is judicial, to avoid injustice from accident, inadvertence or excusable mistake. The misleading hearing notice meant there was no proper service, so the 1st Defendant could not be faulted for absence, satisfying sufficient cause for setting aside.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained or discretion exercised
  • Judicial discretion to set aside orders must be exercised judiciously, to avoid injustice from accident, inadvertence or excusable mistake
  • Any order for an injunction may be discharged, varied or set aside on application by a party dissatisfied with it

Court orders

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  1. 1.The Notice of Preliminary Objection dated 15th January 2024 is unmerited and is dismissed
  2. 2.Orders issued on 1st December 2023 are set aside
  3. 3.The Plaintiff's application dated 28th November 2023 shall be set down afresh for inter partes hearing
  4. 4.Each party shall bear own costs of this application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 7

Cases cited (13)

  • Karata Ernest & Others v Attorney General
    (Civil Revision 10 of 2020) [2010] TZCA 30
  • Bahadural Ebrahim Shamji v Al Noor Jamal & 2 Others
    [1998] eKLR
  • Kenya Electricity Transmission Company Limited v Kibotu Limited
    [2019] eKLR
  • Mutua Kihui v Housing Finance Company of Kenya and Kennedy Onguny
    [2019] eKLR
  • George Waweru Njuguna v Pauline Chesang Gitau Kamunyu
    [2017] eKLR
  • Moses Kimaiyo v Geoffrey Kiprotich Kirui & 2 Others
    [2022] eKLR
  • Harun Rashid Khator suing as the Representative of Rashid Khator (Deceased) v Suid Hamisi & 11 Others
    [2014] eKLR
  • Mukhisa Biscuits Manufacturing Co. Ltd v West-End Distributors Limited
    (1969) EA 696
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Oraro v Mbaja
    [2004] eKLR
  • Patriotic Guards Ltd v James Kipchirchir Sambu
    [2018] eKLR
  • Shah v Mbogo
    [1967] EA 116
  • Maisha Mabati Mills Limited v Farm Auto Spares Ltd
    ELC No. 762 of 2017 (OS)
Jurisdiction invoked
Order 40 Rule 7 Civil Procedure Rules, 2010 (jurisdiction to discharge, vary or set aside an order of injunction); inherent discretion to review/set aside own orders

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, "Maisha Mabati Mills Limited v Farm Auto Spares Limited & 2 others; Gregory & another (Interested Parties) ((In their capacity as the Joint Receivers and Managers of Nalin Works Limited (In Receivers)) (Environment and Land Case E192 of 2023) [2024] KEELC 3553 (KLR)", Case Analysis (2024). Not stated in judgment (interim orders of 1st December 2023 in a suit; related to ELC No. 762 of 2017 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3553/eng@2024-04-05

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