Faraj & 4 others v Halai & 17 others (Environment & Land Case 198 of 2015) [2024] KEELC 3828 (KLR)
The bottom line
#A Mombasa court confirmed its interim order protecting disputed Shelly Beach land, but refused broader injunctions because most defendants were never properly served.
What this practically means
#Executive summary
#Key legal issues
#Whether the plainiffs met the threshold for an interlocutory injunction
The court found the plainiffs had shown need to maintain the status quo of the suit properties pending trial, confirming the interim order of 9 May 2023 rather than granting a fresh injunction against all defendants
The court noted that most defendants were never served with the application and no affidavit of service was filed, so no orders could issue against them without violating Article 50 fair-hearing rights. The 8th defendant's grounds of opposition mirrored a preliminary objection already rejected in the ruling of 29 November 2023, so the court saw no need to interrogate them further. On those findings the court concluded the status quo of the suit properties should be maintained pending hearing and determination of the suit.
Effect of lack of service on unrepresented/unserved defendants
Defendants other than the 7th (who admitted service) and 8th (who filed grounds of opposition) were taken as not served; no orders could issue against them
Counsel admitted serving only the 7th, 8th and 18th defendants, and the court traced no affidavit of service on the record. Service enables a defendant to know what is sought and to reply under Order 51 Rule 14. Issuing orders against unserved parties would contravene their right to a fair hearing under Article 50 of the Constitution, as reinforced by the natural-justice principles in Msagha v Chief Justice.
Whether the 8th defendant's grounds of opposition required determination
The court declined to interrogate the grounds further since they mirrored a preliminary objection already rejected on 29 November 2023
The 8th defendant's grounds of opposition - that the application was defective, an abuse of process, and that ownership was not proved - replicated its preliminary objection dated 20 February 2023, which the court had rejected in its ruling of 29 November 2023. Applying its earlier findings at paragraphs (a) to (f) of that ruling, the court held it would not come to a different decision and moved directly to the merits of maintaining the status quo.
Legal principles established
#- No orders may be issued against parties not served with an application, as this would contravene their right to a fair hearing under Article 50 of the Constitution.
- Service of an application must be proved by affidavit of service as required under Order 5 Rule 15 of the Civil Procedure Rules.
- The burden of proving a fact lies on the party who wishes the court to believe in its existence.
Court orders
#- 1.The plainiffs' application dated the 5th May 2023 is compromised by confirming order (4) that was issued on 9th May 2023, to be inforce pending the hearing and determination of this suit.
- 2.The costs of the application to abide the outcome of this suit.
- Jurisdiction invoked
- Article 50 of the Constitution 2010; Civil Procedure Rules (Order 5 Rule 15, Order 51 Rule 14); Evidence Act section 109; Civil Procedure Act section 27
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faraj & 4 others v Halai & 17 others (Environment & Land Case 198 of 2015) [2024] KEELC 3828 (KLR)", Case Analysis (2024). ELC Case of 2015 (Mombasa) - application dated 5th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3828/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.