Barnabas East Africa v County Government of Mombasa & 2 others (Constitutional Petition 29 of 2022) [2025] KEELC 42 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a KSh 27 million default judgment against the NG-CDF Board over lack of proper service, but refused review because an appeal was already filed.
What this practically means
#Executive summary
#Key legal issues
#Review under Section 80 CPA and Order 45 where an appeal is pending
The application for review dated 2nd April, 2024 was dismissed because the Applicant had already filed an appeal in the Court of Appeal (Appeal No. COACA E204 of 2023), rendering the court functus officio notwithstanding the arguable error under Order 42 Rule 8.
The court accepted that requiring the County Government to deposit Kshs 5,500,000/- as security was an error of law, since Order 42 Rule 8 exempts the Government from security. However, Section 80 and Order 45 review presupposes that no appeal has been preferred. Having filed an appeal, the County Government's remedy lay in the Court of Appeal; allowing review would be eating the cake and having it. The application was therefore dismissed with no order as to costs.
Setting aside ex-parte judgment for want of service
The ex-parte judgment of 12th October 2023 against the 3rd Respondent was set aside because there was no affidavit of service proving proper service on the NG-CDF Board; the judgment was irregular and was set aside ex debito justitiae.
Relying on Order 12 Rule 7, Order 51 Rule 15 and James Kanyiita Nderitu, the court distinguished regular from irregular default judgments. The court confirmed the Board was not served as there was no affidavit of service, and the existing affidavits did not show how the process server identified the person served. The draft Reply raised triable issues, so the threshold for setting aside was met.
Temporary injunction under Order 40 Rule 1
The 3rd Respondent satisfied the Giella conditions - prima facie case, irreparable harm not compensable by damages, and balance of convenience - and a temporary injunction restraining execution was granted.
Applying Giella v Cassman Brown and Nguruman Limited, the court found a prima facie case with probability of success, that the applicant would not be adequately compensated by damages if execution proceeded, and that the balance of convenience tilted toward the applicant pending full hearing. Interlocutory relief maintains the status quo without making final findings.
Striking out a wrongfully joined party
The prayer to strike out the 3rd Respondent was declined; whether it is a proper party can only be determined at full trial under Order 1 Rules 9 and 10(2).
Order 1 Rule 9 provides no suit shall be defeated by misjoinder or non-joinder. Under Order 1 Rule 10(2) the court may strike out an improperly joined party, but the discretion must be exercised judiciously. Following DT Dobie v Mbaria Muchina, the court cannot embark on the merits at this stage; the claims against the 3rd Respondent should be controverted through its response at trial.
Legal principles established
#- A party cannot pursue an appeal and simultaneously seek review of the same decision; once an appeal is filed the trial court becomes functus officio.
- No orders for deposit of security shall issue against the government, including a county government, by virtue of Order 42 Rule 8 of the Civil Procedure Rules.
- A default judgment entered against a defendant who was not served is irregular and is set aside ex debito justitiae as a matter of right.
- A suit shall not be defeated by misjoinder or non-joinder of parties, and striking out a party improperly joined is discretionary and should be approached with caution.
Court orders
#- 1.The Notice of Motion application dated 2nd April, 2024 dismissed in its entirety.
- 2.The Notice of Motion application dated 30th April, 2024 allowed save for prayer 2 (striking out the 3rd Respondent).
- 3.The ex-parte proceedings against the 3rd Respondent and the ex-parte judgment dated 12th October 2023 entering judgment against the 3rd Respondent in the sum of Kshs. 27,150,000/- jointly with the other Respondents varied and/or set aside; the proceedings re-opened; the 3rd Respondent granted leave to participate and the Reply to the Petition deemed duly filed.
- 4.The 3rd Respondent granted 14 days leave to file and serve further responses to the Petition, with 14 corresponding days for the Petitioners to file and serve further documents responding to any new issues.
- 5.Hearing of the Petition as regards the 3rd Respondent set for 6th May, 2025.
- 6.Each party to bear their own costs.
- Jurisdiction invoked
- Sections 80, 1A, 1B, 3A of the Civil Procedure Act Cap. 21; Orders 42 Rule 8, 45, 40 Rule 1, 12 Rule 7 and 51 Rule 15 of the Civil Procedure Rules, 2010; Article 50 of the Constitution; Section 5(d)(1), 15(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barnabas East Africa v County Government of Mombasa & 2 others (Constitutional Petition 29 of 2022) [2025] KEELC 42 (KLR)", Case Analysis (2025). Environment and Land Constitutional Petition (Mombasa) - Ruling on Notices of Motion dated 2nd April, 2024 and 30th April, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/42/eng@2025-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.