Kamau & another v Kiarie & 5 others (3rd, 4th and 5th Respondents Sued as Trustees of P.C.E.A Thindigua Church) (Environment and Land Case Civil Suit 93 of 2015) [2024] KEELC 4504 (KLR)
The bottom line
#A Kenyan court set aside eviction orders obtained without hearing the other side, confirming that orders issued ex parte in breach of fair hearing rights cannot stand.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata by virtue of the ruling of 6th April 2022
The preliminary objection fails because the applicant was not heard when the earlier application was determined; res judicata does not apply where the earlier determination was made without considering the applicant's case
The earlier application sought the same orders between the same parties, but the applicant's submissions and supplementary affidavit, though filed, ended up in another file and were not considered. Since the applicant's side of the story was never before the court, the matter was not substantially heard. Substantial injustice is an exception to res judicata, so locking the applicant out would be a great injustice.
Whether the ex parte order of 30th November 2021 and the consequential eviction order should be set aside
Yes; the orders were issued ex parte in breach of the applicant's right to a fair hearing under Article 50 of the Constitution and the rules of natural justice
It was not contested that the order was issued ex parte. Article 50 guarantees every person the right to have any dispute decided in a fair and public hearing. Authorities establish that a person likely to be adversely affected must be heard before a decision is made, and a decision made in breach of natural justice cannot stand even if the outcome would have been the same. The applicant was therefore entitled to be heard.
Legal principles established
#- A matter determined without according a party a hearing is not substantially heard and determined, and res judicata does not apply where substantial injustice would result
- A breach of natural justice vitiates a decision regardless of whether the same result would have been reached
Court orders
#- 1.The order made on 30th November 2021 and any consequential orders (including the eviction order of 3rd February 2022) are set aside
- 2.The application to be listed for hearing inter partes
- 3.Costs to abide the outcome of the application
- Jurisdiction invoked
- Inherent powers of the Environment and Land Court to set aside its own ex parte orders; Article 50 of the Constitution (fair hearing)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau & another v Kiarie & 5 others (3rd, 4th and 5th Respondents Sued as Trustees of P.C.E.A Thindigua Church) (Environment and Land Case Civil Suit 93 of 2015) [2024] KEELC 4504 (KLR)", Case Analysis (2024). Not stated in judgment (ELC suit; related suit ELC E159 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4504/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.