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ELCPartially AllowedNot stated in judgment (ELC suit; related suit ELC E159 of 2022)· [2024] KEELC 4504 (KLR)

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)

Environment and Land Court
23 May 2024
1,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant moved the court by Notice of Motion dated 16th January 2024 seeking to set aside ex parte orders issued on 30th November 2021 and an eviction order issued on 3rd February 2022, plus costs. The 1st, 3rd, 4th and 5th Respondents filed a preliminary objection contending the application was res judicata, an identical application having been determined on 6th April 2022. The applicant argued that the eviction orders were obtained ex parte without a hearing, breaching her right to a fair hearing under Article 50 of the Constitution, and relied on authorities including Evans Thiga Gaturu v Naiposhs Company Limited. The respondents relied on Abok Kames Odera v John Patrick Machira and Agnes Muthoni Nyanjui on res judicata and abuse of process. The court framed two issues: res judicata and whether the impugned orders should be set aside. On res judicata, it found that although the earlier application concerned the same orders between the same parties, the applicant's submissions and supplementary affidavit were misfiled and never considered, so the applicant was not heard; a matter not heard on merit is not substantially determined, and substantial injustice is an exception to res judicata. The preliminary objection failed. On the merits, the court held that the ex parte issuance of the orders breached Article 50 and natural justice, citing Kenya Power & Lighting v Benzene Holdings, Onyango v Attorney General and Mbaki v Macharia. The court allowed the application, set aside the 30th November 2021 order and all consequential orders, directed the application be heard inter partes, and ordered costs to abide the outcome.

Key legal issues

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01

Whether the application is res judicata by virtue of the ruling of 6th April 2022

Holding

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

Reasoning

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.

p. 3
02

Whether the ex parte order of 30th November 2021 and the consequential eviction order should be set aside

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The order made on 30th November 2021 and any consequential orders (including the eviction order of 3rd February 2022) are set aside
  2. 2.The application to be listed for hearing inter partes
  3. 3.Costs to abide the outcome of the application

Authorities

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Legislation

  • Civil Procedure ActSection 7 (Cap 21)
  • Constitution of Kenya, 2010Article 50

Cases cited (8)

  • Evans Thiga Gaturu & Another v Naiposhs Company Limited & 13 Others
  • Kamunye & Others v Pioneer General Society Ltd
    (1971) EA 263
  • Abok Kames Odera v John Patrick Machira
    Civil Application No. 49 of 2001
  • Agnes Muthoni Nyanjui & 2 others v Annah Nyamburah Kioi & 3 others
    (2015) eKLR
  • Uhuru Highway Development Ltd v Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni
  • Kenya Power & Lighting Versus Benzene Holding t/a Wyco Paints
    [2016] eKLR
  • Onyango v. Attorney General
    (1986-1989) EA 456
  • Mbaki & Others v. Macharia & Another
    (2005) 2 EA 206
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

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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, "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.