Communist Party of Kenya v Nairobi Metropolitan Services & 3 others; National Environment Management Authority & another (Interested Parties) [2021] KEELC 125 (KLR)
The bottom line
#A Kenyan court refused to lift orders protecting Uhuru Park, ruling that parties who skip court after being properly served cannot claim unfair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Respondent was properly served with the pleadings
Service was properly effected on all Respondents including the 2nd Respondent; the affidavit of service sworn by Boniface Kilonzo confirmed service, and the 2nd Respondent never sought to cross-examine the process server.
The court perused the affidavit of service filed on 2nd December 2021, which recorded service at the 2nd Respondent's offices at KICC where a secretary accepted and stamped the documents. The court noted the two options when service is disputed: examine the affidavit of service, or allow cross-examination of the process server. The 2nd Respondent did not request cross-examination, so the affidavit was scrutinized and found to demonstrate proper service.
Whether the Respondents were denied a fair hearing before the conservatory orders were issued
No violation of the right to a fair hearing arose because the parties were served and directed to attend but opted not to; a party cannot benefit from its own failure to attend when duly notified.
The court found that on 29th November 2021 it had directed that all parties be served, and on 6th December 2021 counsel present addressed the court on conservatory orders. The court held there are exceptions to the rule against condemning a party unheard, particularly where the subject matter is in danger of destruction, and that a duly notified party's failure to attend cannot ground a complaint of violation of Article 50.
Whether the threshold for review/set-aside under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was met
The threshold was not met: no new and important matter or evidence was discovered, no error apparent on the face of the record was shown, and the application, though filed timeously, lacked merit.
The court restated the grounds for review: discovery of new and important matter not within the applicant's knowledge despite due diligence, error apparent on the face of the record requiring no elaborate argument, or other sufficient reason, applied for without unreasonable delay. The court found no new matter, and the facts underlying the orders (absence of an EIA licence) were not proven false since the applicant's own deponents confirmed no licence had been issued.
Whether the court could consider conservatory orders on 6th December 2021 when the matter was scheduled for directions
The court could consider the application at any stage of a constitutional petition before final determination; the 29th November directions deferred the conservatory orders application to 6th December 2021 for that very purpose.
The court rejected the submission that the hearing was wrongly converted from a mention to a hearing, explaining that it had declined to grant conservatory orders ex-parte on 29th November and instead directed service for 6th December when the application would be considered. In a constitutional petition, conservatory orders may be considered at any stage before final disposal of the main petition.
Legal principles established
#- Conservatory orders are constitutional remedies in rem meant to preserve the status quo, not ordinary civil law remedies between individuals
- A party who was served and duly notified but failed to attend proceedings cannot claim violation of the right to a fair hearing
- Where there is a lacuna in procedure under the Mutunga Rules, the Civil Procedure Rules apply
- Where a party disputes service, the court may either examine the affidavit of service or allow cross-examination of the process server; a party who does not request cross-examination leaves the affidavit for scrutiny
Court orders
#- 1.The Application dated 8th December 2021 is dismissed
- 2.No orders as to costs
- 3.The orders issued on 7th December 2021 remain in force
- 4.All parties are reminded to comply with the orders fast-tracking the hearing of the main Petition
- Jurisdiction invoked
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules), read with Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Communist Party of Kenya v Nairobi Metropolitan Services & 3 others; National Environment Management Authority & another (Interested Parties) [2021] KEELC 125 (KLR)", Case Analysis (2021). ELC Petition No. 8 of 2021 (Formerly High Court Petition No. E496 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/125/eng@2021-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.