Fmaily Shade Africa Limited v Mukuria & another [2024] KEELC 1695 (KLR)

Fmaily Shade Africa Limited v Mukuria & another (Environment & Land Case 100 of 2020) [2024] KEELC 1695 (KLR) (5 April 2024) (Ruling)

Neutral citation: [2024] KEELC 1695 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 100 of 2020

EK Wabwoto, J

April 5, 2024

Between

Fmaily Shade Africa Limited

Plaintiff

and

James Gitau Mukuria

1st Defendant

Jane Wanjiku Gitau

2nd Defendant

Ruling

1. The Defendants moved the Court vide a Notice of Motion Application dated 25th January 2024, accompanied by a supporting affidavit sworn by James Gitau Mukuria seeking the following orders:i.Spent.ii.That the Honourable Court be pleased to review orders granted to the Plaintiff’s application dated 15th December 2023. iii.That this Honourable Court do grant the 1st and 2nd Defendants leave to file and serve their Replying affidavit.iv.That costs be in the cause.

2. The Application was premised on Order 45 of the Civil Procedure Rules, Section 1A,1B,3A of the Civil Procedure Act and made on five grounds;i.The Plaintiff filed an application dated 15th December under a certificate of urgency.ii.The Plaintiff served the application and order to the Defendants on 19th January 2024. iii.The Application was to come up for hearing on 24th January 2024. iv.The Defendants’ advocate attended the hearing on the said date however she could not be heard.v.The application was allowed without the Defendants being heard.

3. The Defendants filed submissions dated 16th February 2024 in which they submitted that there was an apparent error, specifically in relation to the issue of service that had led to granting of the said orders. Additionally, it was submitted that there was a misrepresentation by the Plaintiff’s advocate and on the Defendants’ advocate had logged in but faced technical challenges. It was argued that since an apparent error had been proven, they were entitled to the orders sought.

4. The Plaintiff opposed the application vide a replying affidavit dated 31st January 2024 sworn by William Murethi and submissions dated 22nd February 2024. It was argued that service of the Application was duly effected vide separate emails on 20th December 2023 and 19th January 2024, therefore the Defendants had at least two working days 22nd & 23rd January 2024 to respond to the application which they never did nor protested the service.

5. It was also argued that the Defendants stands to be prejudiced since the Honourable Court entered judgement in favour of the Plaintiff on 30th August 2023 which included an eviction order against the Defendants and since then the ninety-day stay had lapsed on 30th November 2023. It was further argued that the Respondent had not provided the Court with any reasonable justification on why they have not vacated the suit premise to date.

6. I have considered the application, evidence and written submissions filed by the parties. In my view, the issue that arises for determination is whether Defendants application has met the threshold for grant of the orders sought.

7. I have scrutinized the Court records which confirms that a Notice of Change of Advocates on behalf of the Defendants was filed by the firm of Achach & Associates Advocates LLP on 23rd November 2023. The record further confirms that the Plaintiff served the application dated 15th December and Court order dated 18th December 2023 via email to owuochadvocates@gmail.com (being the Defendants’ prior advocates) on 20th December 2023.

8. The Plaintiff argued that they later served the Respondent via a different email- info@achachllp.co.ke. on 19th January 2024. However, the Court has not found any such affidavit of service on record. It is therefore prudent in the spirit of upholding fairness and right to fair hearing to accord the Defendants an opportunity to defend themselves.

9. In the foregoing, this Court finds that the Notice of Motion application dated 25th January 2024 is merited and will proceed to allow the same in the following terms:i.This Court’s orders issued on 24th January 2024 with regards to the application dated 15th December 2023 are hereby set aside.ii.The 1st and 2nd Defendants are hereby granted leave to file and serve their Replying affidavit within 7 days of delivery of this ruling.iii.The Plaintiff is granted leave of 7 days to file further affidavit if necessary.iv.The Notice of Motion Application dated 15th December 2023 shall be set down for hearing afresh.v.Each party shall bear own costs of this application.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF APRIL 2024. E. K. WABWOTOJUDGEIn the presence of: -Mr. Masinde for the Plaintiff.Ms. Kariuki for the Defendants.Court Assistant; Caroline Nafuna.