Mwasi & 5 others v Mbaruk (Environment and Land Appeal 30 of 2018) [2024] KEELC 3820 (KLR)
The bottom line
#A Mombasa court set aside stay orders after a lawyer falsely claimed the other side had been served, warning counsel never to mislead the court.
What this practically means
#Executive summary
#Key legal issues
#Whether service of the application was effected and proved
No affidavit of service in terms of Order 5 Rule 15 of the Civil Procedure Rules or any other document evidencing service had been filed, contrary to counsel's submission
The court perused both the manual record and the CTS and found no affidavit of service filed since the filing of the application. Counsel's assertion that an affidavit of service had been filed was therefore untrue and misled the court. The order requiring service and filing of evidence of service had not been complied with, undermining the basis on which the application was placed for ruling.
Whether the ex parte stay and urgency certification should stand
The urgency certification and ex parte stay were reviewed and set aside for non-compliance and lapsed orders
The temporary stay had lapsed on 13th May 2024, and the respondent's failure to comply with the service directions showed the alleged urgency no longer existed. The court concluded the respondent was undeserving of the ex parte stay and that the certification of urgency ought to be reviewed and vacated.
Whether the respondent should be given a further chance to prosecute the application
The respondent was granted a last opportunity to serve and file evidence of service within seven days
Despite the counsel's misleading conduct, the court did not strike out the application outright but extended a final indulgence, giving the respondent seven days to serve and file evidence of service, with the appellants to reply within fourteen days of service and a hearing date to be fixed.
Legal principles established
#- Parties and their advocates have a duty to assist the court to further the overriding objective of the Civil Procedure Act and to comply with the court's directions and orders
- Counsel must not mislead the court on matters of service, as doing so contravenes the right to a fair hearing under Article 50 of the Constitution
Court orders
#- 1.Order 1 of 26th April 2024 certifying the application as urgent is reviewed and set aside
- 2.The order of 13th May 2024 placing the application for ruling is reviewed and set aside, service and filing of affidavit of service not having been complied with
- 3.The respondent/applicant is granted a last opportunity to serve the application and file evidence of service within seven (7) days
- 4.The appellants to file and serve their replies within fourteen (14) days after service
- 5.A date for hearing of the application to be fixed
- On appeal from
- Hon. J. Nyariki (ruling under appeal to the Court of Appeal in Appeal No. E006 of 2020)
- E006 of 2020 (Court of Appeal)
- Jurisdiction invoked
- Inherent powers of the court to review its own orders; Civil Procedure Act chapter 21, section 1A(3); Article 50 of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwasi & 5 others v Mbaruk (Environment and Land Appeal 30 of 2018) [2024] KEELC 3820 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3820/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.