Automated Summary
Key Facts
The Environment and Land Court at Nakuru ruled on an application to set aside ex-parte orders issued on 21st May 2025 in Environment and Land Case E048 of 2025. The Respondent, Robert Muruthi Kanyua, was served with the application on 19th May 2025 (outside the five-day service window) and was not provided the court's mention date for the hearing. The Applicants sought an urgent eviction order against the Respondent, which was initially allowed unopposed. The Court found the service incomplete and granted the Respondent leave to file his response, setting aside the previous ex-parte orders. Costs were apportioned equally between the parties.
Issues
- The court considered whether the ex-parte orders issued on 21st May 2025 should be set aside, given that the Respondent was served with the application on 19th May 2025 without the accompanying court directions or mention date. The Respondent argued that the Applicants' failure to provide the mention date and the service delay justified setting aside the ex-parte ruling to allow a proper inter partes hearing.
- The Applicants contended that the Respondent's current application was an abuse of court process, citing his failure to obtain injunctive orders against the lower court's dismissal of his case in Nakuru Cmelc Case No E242 OF 2023. Counsel for the Applicants referenced precedents (Muchanga Investments Limited vs Safaris Unlimited and Keigi vs Mwaura) to argue that the Respondent's actions were an attempt to delay justice.
Holdings
- The ex-parte proceedings and orders issued on 21st May 2025 are hereby set aside.
- The Respondent is hereby granted leave to file his response to the application dated 5th May 2025 within five days from the date herein and fix a date for the hearing of the Application.
- Each party shall bear their own costs.
Remedies
- The ex-parte proceedings and orders issued on 21st May 2025 are hereby set aside.
- The Respondent is granted leave to file his response to the application dated 5th May 2025 within five days, and a date for the hearing of the Application is fixed.
- Each party shall bear their own costs.
Legal Principles
The court applied the principle of judicial review to assess whether ex-parte orders issued on 21st May 2025 should be set aside, citing Order 51, Rule 15 of the Civil Procedure Rules and emphasizing the need to avoid injustice from errors in service procedures.
Precedent Name
- Stephen Ndichu vs Monty's Wines and Spirits Ltd
- Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 Others
- Keigi vs Mwaura
- Richard Nchapi Leiyagu v IEBC & 2 others
Cited Statute
Civil Procedure Rules
Judge Name
Mao Odeny
Passage Text
- Order 51, Rule 15 of the Civil Procedure Rules provides; "The court may set aside an order made ex parte." The Court of Appeal in Richard Nchapi Leiyagu v IEBC & 2 others (2013) eKLR expressed itself as follows: "We agree with those noble principles which go further to establish that the court's discretion to set aside an ex parte judgment or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or inexcusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice."
- The ex-parte proceedings and orders issued on 21st May, 2025 are hereby set aside. The Respondent is hereby granted leave to file his response to the application dated 5th May, 2025 within five days from the date herein and fix a date for the hearing of the Application.