Peter Sakala v Embakasi Ranching Company Ltd & another [2016] KEELC 1109 (KLR)
The bottom line
#A Kenyan court set aside an ex parte injunction, confirming that winning by default is never final — the other side can still be heard in the interest of justice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex parte injunction order made on 5th May 2015 by Mutungi J. should be set aside, having regard to the question of service on the 2nd respondent
- 2.Whether the 2nd respondent was duly served with the Originating Summons and the application dated 21st April 2015
- 3.Whether the 2nd respondent should also be granted an injunction against the applicant and a mandatory order to remove a canopy
Key legal issues
#Whether the 2nd respondent was served with the Originating Summons and the injunction application dated 21st April 2015
The court found that the 2nd respondent was duly served on 30th April 2015; she did not deny the process server's detailed affidavit of service, the phone number, the call or the meeting, and failed to discharge the burden of disputing service
The process server's affidavit gave detailed information on how he traced and served the 2nd respondent. She made only a blanket allegation that the affidavit was false without denying the phone number, the call or the meeting. Applying Miruka v Abok, the qualified presumption in favour of the process server applied and she failed to rebut it, making the ex parte order of 5th May 2015 regular.
Whether despite valid service the ex parte orders of 5th May 2015 should nonetheless be set aside
Yes. Although service was proved, the discretion is unfettered and the interest of justice favoured hearing the 2nd respondent, who had a reasonable defence and whose developments had stalled under the order
The court held that even valid service does not bar setting aside ex parte orders if justice so requires. There was no evidence the 2nd respondent intended to evade justice, nor that the applicant would suffer prejudice not compensable in costs. Her photographs showed the applicant resided on a road reserve, giving her a reasonable defence that she should be allowed to advance. Sufficient reason therefore existed to set aside the orders.
Whether the 2nd respondent was entitled to an injunction against the applicant and a mandatory order to remove the canopy
No; those reliefs were refused because she had not yet replied to the Originating Summons
The court noted that the 2nd respondent had not filed a replying affidavit or grounds of opposition to the Originating Summons, and therefore there was no evidentiary basis for the substantive reliefs she sought within the application. She was instead given 14 days' leave to file her response, and the substantive application would be heard inter partes on a priority basis.
Legal principles established
#- The court's discretion to set aside ex parte judgments and orders is unfettered, and the court's main concern is to do justice to the parties
- Where service of process is disputed, there is a qualified presumption in favour of the process server and the party disputing service bears the burden of showing the return is incorrect
- Examination of a process server is only necessary where there are conflicting affidavits as to service
Court orders
#- 1.The orders made on 5th May 2015 are set aside together with all consequential orders made pursuant thereto
- 2.The 2nd respondent is granted leave to file a replying affidavit and/or grounds of opposition to the applicant's Notice of Motion dated 21st April 2015 within 14 days
- 3.The parties shall take a hearing date for the application dated 21st April 2015 at the registry on a priority basis
- 4.Pending hearing of that application inter partes, the respondents shall not demolish or destroy the applicant's structures, house or residence said to be on the suit property or interfere with his occupation and possession thereof
- 5.The 2nd respondent may continue construction of the two houses she had commenced on the suit property, provided the works do not interfere with the applicant's residence
- 6.The 2nd respondent shall pay the applicant the cost of this application assessed at Kshs.15,000/= within seven days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction and Order 40 rule 7 and Order 51 rule 15 of the Civil Procedure Rules on setting aside ex parte injunction orders
Relief refused
#Injunction restraining the applicant from trespassing on, interfering with or dealing with the suit property pending hearing of the suit
The 2nd respondent had not filed a replying affidavit to the Originating Summons, so there was no basis for these reliefs at that stage
Mandatory order compelling the applicant to remove the canopy protruding from his house across the perimeter fence
Same reason - no replying affidavit to the Originating Summons filed; no basis for the relief at this stage
Costs
The 2nd respondent shall pay to the applicant the cost of this application assessed at Kshs.15,000/= within seven (7) days from the date hereof
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The orders made herein on 5th May, 2015 are hereby set aside together with all consequential orders that were made pursuant thereto.
Pending the hearing and determination of the said application dated 21 st April 2015 inter partes as aforesaid, the respondents shall not demolish or destroy the applicant's structures, house or residence said to be situated on the suit property or in any way interfere with his occupation and possession thereof.
The 2ndrespondent shall pay to the applicant the cost of this application assessed at Kshs.15,000/= within seven (7) days from the date hereof.
Where service is disputed there is a qualified presumption in favour of the process server. The burden lies on the party questioning service to show that his return is incorrect.
It is clear from the foregoing provisions of the Civil Procedure Rules that this court has unfeterred discretion to set aside the order that was issued herein on 5 th May, 2015 by Mutungi J. exparte.
Issues in the judgment
#The judgment internally describes the applicants as having been 'directed to serve the applicants for inter partes hearing' and refers to the applicant being served, suggesting typographical confusion between parties
The judgment appears to be a ruling on an interlocutory application (by the 2nd respondent) but is styled and delivered as a judgment; the underlying Originating Summons remains undetermined
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Sakala v Embakasi Ranching Company Ltd & another [2016] KEELC 1109 (KLR)", Case Analysis (2016). Originating Summons dated 21st April 2015 (with Notice of Motion dated 1st July 2015 under determination). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1109/eng@2016-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.