1. This ruling is in relation to the application dated 16/5/2024 by Alice Muthoni King’ori the 4th respondent in the petition filed herein.
2. By way of background, the petitioners filed a petition herein dated 12/4/2024 praying for orders that declarations be issued by this court that the actions of the DCI, the NPS and DPP, the 1st to 3rd respondents in seeking to have the 1st and 2nd petitioners arrested and charged before Shanzu Law Courts in Criminal Case No. E311 of 2024 on charges of obtaining money by false pretences contrary to section 313 of the Penal Code (Cap. 63) Laws of Kenya and against the 1st, 2nd and 3rd petitioners in Criminal Case No. E090 of 2024 on similar charges is unlawful, unconstitutional, and a breach of their fundamental rights and freedoms as enshrined in the Bill of Rights of the Constitution of Kenya as well as an abuse of the criminal justice system, misuse of public office by the DCI, NPS and DPP for purposes of achieving ulterior and improper motives. They also sought an order to forbid the 1st, 2nd and 3rd respondents from proffering the said criminal charges or any other charges against the petitioners on complaints made by the 4th respondent either by herself, proxies, family members, servants, employees and/or any other such person as instructed by the 4th respondent in relation to and arising out of the sale and purchase (conveyance) of Massionate No. 57 and 58 Phase 2 Bamburi Parkside Situate on Plot No. Sub-division Number MN/II/343 and finally an order to forbid the proceedings in the said Criminal Case No. E311 of 2024 against the 1st and 2nd petitioners.
3. Alongside the petition, they also filed a Notice of Motion application dated 12/4/2024 under Certificate of Urgency seeking orders of stay of proceedings against plea taking, arraignment, reading of charges, continued prosecution of the applicants in Shanzu Magistrates Court Criminal Case No. E311 of 2024 Republic v Ali Abdallah Ragude and Another pending the hearing and determination of the petition filed alongside the application. They also sought an order that the said proceedings and the summonses to attend court for plea taking pending the hearing and determination of the petition be terminated for failing the constitutional threshold for being unfounded, malicious, oppressive and otherwise unconstitutional.
4. On 17/4/2025 this court (Hon. Justice Gregory Mutai), granted interim orders of stay of proceedings pending inter partes hearing on 2/5/2024. On the date for inter partes hearing the court being satisfied that the application was duly served but there was no response thereto granted the orders sought in the application for stay of proceedings pending hearing and determination of the petition.
5. On 22/5/2024, the 4th respondent Alice Muthoni Kingori filed the present application by way of Notice of Motion dated 16/5/2024 under certificate of urgency seeking orders that this court exercises its supervisory power of revision (sic) and revise, vary and set aside the ex parte order issued on 17/4/2024 and the order issued on 2/5/2024 ex debito justitiae and also that the court strikes out the application dated 12/4/2024.
6. When the matter came up for mention for directions on the hearing of the petition, learned counsels for all the respondents kept contending that they had never been served with the Petitioner’s application dated 12/4/2024. Learned counsel for the Petitioner’s Mr. Egunza on his part insisted that he had served the application and the petition and filed the requisite affidavits of service.
7. In order to address all the issues conclusively, the court directed that the petitioners serve their application dated 12/4/2024 upon the respondents and that the two applications be heard concurrently and a ruling given. Having now carefully considered the entire pleadings and proceedings in this matter, I find that the disposal of the present application dated 16/5/2024 is sufficient and it is unnecessary to go back to reconsider the application dated 12/4/2024 by the petitioners as the same was considered and granted by this court earlier.
8. The present application is expressed to be brought under Articles 50(2)(e), 159 and Article 165(6) and (7) of the Constitution of Kenya, Sections 362 & 364 of the Criminal Procedure Code; Section 4 (2) (b) of the Victims Protection Act No. 17 of 2014; and all other enabling provisions of the Law and the Inherent Jurisdiction of the Court.
9. The grounds in support of the application are as outlined on the face thereof as well as in the supporting affidavit of Alice Kingori Muthoni sworn on 16/5/2024.
10. The grounds on the face of the application are numerous but the gist of them is that there was no service of the application dated 12/04/2024, the Order obtained on 17/04/2024 and a hearing date for inter partes hearing of the said application upon the 4th Respondent and the proceedings were irregular as they were conducted without participation of the 4th Respondent who was not aware that the same had been filed and that it had been set for hearing on 02/05/2024.
11. In response to the application, Ali Abdallah Ragude, on his behalf and that of the 2nd and 3rd petitioners/respondents swore an affidavit on 20/9/2024. He deposes that all the respondents were duly served with the application and the court order issued on 17/4/2024. He has annexed to his replying affidavit an affidavit of service sworn on 19/4/2024 by Charles Mokaya Monari, process server to support that contention.
12. He deposes further that if the main issue of the 4th respondent’s application is that there was no service of the application and orders upon her then the 4th respondent ought to have applied at the same time of filing this application, an application to cross-examine the process serve Charles Mokaya Monari which she has not done.
13. In response to the application, the 1st and 2nd respondents through the Attorney General filed a replying affidavit by Ezekiel Rotich, the OCS Bamburi police station sworn on 7/8/2024. He deposes that they support the current application by the 4th respondent. He also denied service of the petition, application dated 12/4/2024 by the petitioners and ensuing orders of this court of 17/4/2024 and 2/5/2024 upon the 1st and 2nd respondents. He deposes that the 1st and 2nd respondents learnt of the said application and orders on 2/5/2024 when Magistrate’s Criminal Case No. E311 of 2024 came up for plea taking when the petitioner’s advocate produced the order to the court. However, they were only able to see the documents on 22/7/2024 when the AG forwarded to them who on their part had been served on 28/6/2024 after this court on 27/6/2024 directed that they be served within three days.
14. In response to the affidavit of service by the process server annexed to the replying affidavit of the petitioner, the 1st and 2nd respondents state that the e-mail address indicated therein as having been used to serve the 2nd respondent, National Police Service is in fact for the National Police Service Commission which is not a party to the petition. With respect to the stamp bearing the name of Bamburi police station on the document by the process server Charles Mokaya Monari, he deposes that it is not signed nor does it bear a date-stamp in order to ascertain whoever received it and the time as is the practice.
15. The application was disposed of by way of submissions filed by learned counsel for the 1st and 2nd respondents as well as for the 4th respondents. Learned counsels for the petitioners and for the DPP did not file submissions.
16. Learned counsel for the 4th respondent/applicant has set out some six issues for determination but for me the real issue is just one, whether the order issued by this court on 2/5/2024 for stay of proceedings in Shanzu Magistrates Court Criminal Case No. E311 of 2024 should be varied, set aside or discharged.
17. Learned counsel for the 4th respondent/applicant cites Rule 11(5) of the Industrial Court (Procedure) Rules under Cap. 234 but whose application to the present application I do not find relevant.
18. Learned counsel submits that there is no evidence provided to this court to prove that the petition, application dated 12/4/2024 and orders of this court dated 17/4/2024 were served upon any of the respondents as there is no document signed by any person receiving them and for that reason the order of 2/5/2024 confirming the interim orders of 17/4/2024 was obtained in an irregular manner.
19. Learned counsel submits that in view of the failure to serve the said documents upon the respondents, their rights to a fair hearing under article 50(1) of the Constitution were violated as they were condemned unheard. Further, that the failure was in breach of the order issued on 17/4/2024.
20. Learned counsel relies on the cases of Andrew Nthiwa Mutuku v Court of Appeal & 3 others [2021] KEHC 8264 (KLR) and Prasul Jayantilal Shah v Republic; Joseph Karuoro Claudio (Interested Party) [2022] KEHC 1778 (KLR).
21. I find the other submissions about the jurisdiction of this court to consider the application at hand and the issue of contempt of court by the petitioners of the lower court orders not to be in line with this application.
22. Learned counsel Mwanaszumba, for the AG appearing for the 1st and 2nd respondents submits that the two were never served in compliance with Order 5 Rule 13 of the Civil Procedure Rules (CPR) and Rule 14(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2014. She also relies on the case of Law Society of Kenya v Martin Day & 3 others [2015] eKLR on the importance of adhering to the provisions of law with regard to service of process.
23. Learned counsel also submits that the failure to serve process upon the respondents was in breach of their right to a fair hearing in order to be able to appear in court and present their side of the story and defend the case against them as guaranteed under Article 50(1) of the Constitution.
24. Learned counsel further submits that under Order 10 rule 11 CPR the court has discretion to set aside the orders issued herein on such terms as it deems fit and just. She has called in aid of her submission the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) on the nature and effect of an irregular service of process.
25. I will start by clarifying that contrary to the submissions by learned counsel for the applicant, this application is not considered under the court’s supervisory power’s over itself as there is no such jurisdiction under the constitution or laws of Kenya. I believe the applicant in the application and submissions by learned counsel meant to pray for a review of the earlier orders.
26. The application herein is basically for this court to review its order dated 2/5/2024. The law that provides for review of court orders is section 80 of the Civil Procedure Act (Cap. 21) Laws of Kenya and order 45 rule 1 of the CPR.
27. Section 80 CPA provides as follows:
“Any person who considers himself aggrieved:
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
28. Order 45 rule 1 CPR sets out the grounds for review as follows:
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
29. The present application by the 4th respondent seeks review of this court’s orders which stayed the proceedings in Shanzu Magistrates Court Criminal Case No. E311 of 2024 issued on 2/5/2024 for reasons that the application dated 12/4/2024, leading to the said orders was never served upon the 4th respondent and the court should therefore review the orders of stay earlier granted on 2/5/2024. Under section 80 CPA and order 45 CPR as expounded in the case of Republic v Public Procurement Administrative Review Board & 2 others [2018] e KLR a review may be granted under the following circumstances:
a. discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
b. on account of some mistake or error apparent on the face of the record, or
c. for any other sufficient reason.
30. Whatever the ground is demonstrated, there is a requirement that the application has to be made without unreasonable delay.
31. The main ground cited by the 4th respondent herein and supported by the 1st and 2nd respondents is that the respondents were not served with the application leading to the grant of the orders of stay and therefore the petitioner is enjoying the protection of the stay orders when they obtained the orders unprocedurally. The present application therefore falls under the ground of “any other sufficient cause.” The petitioners on their part insist that they duly served the application dated 12/4/2024 and order dated 17/4/2024 upon all the respondents.
32. To begin with, there is no affidavit of service upon the 4th respondent. Charles Mokaya Monari filed only one affidavit of service sworn on 19/4/2024 and he alleges service upon the 1st, 2nd, and 3rd respondents only. There is nowhere in that affidavit that he deposes to having served the 4th respondent despite the petitioners making her a party to the petition and the application. The 1st petitioner in his replying affidavit to the present application alludes to service through WhatsApp but the affidavit of Charles Mokaya Monari filed herein and also annexed to the replying affidavit does not make such a deposition.
33. Secondly, with respect to the 1st and 3rd respondents, the affidavit of service alleges to have effected the service upon some unidentifiable persons at the respective offices. I find that the affidavit is deliberately vague on who was allegedly served with respect to the 1st and 3rd respondents and is an indication that there was no such service that was made upon any of them. Mr. Ngiri, learned counsel for the DPP who was prosecuting this matter maintained throughout the proceedings that the DPP had never been served and kept imploring Mr. Egunza learned counsel for the petitioners to serve the documents to no avail. Having carefully looked at the affidavit of service filed by Charles Mokaya Monari, I am now satisfied that there was no service upon the 3rd respondent as Mr. Ngiri kept informing the court.
34. Thirdly, with respect to the 2nd respondent, the National Police Service, it is apparent from Mr. Monari’s affidavit of service that the same was not served upon the NPS but a different entity known as the National Police Service Commission as deposed by Ezekiel Rotich, the OCS Bamburi police station in the replying affidavit sworn on 7/8/2024. That deposition was not discounted by the petitioners.
35. With respect to the 1st respondent it is identified in the pleadings as “the Directorate of Criminal Investigations, Mombasa Regional Police Headquarters.” There is no evidence of service to show that service was effected upon this office. The alleged service at Bamburi Police station was not service at all nor was it service upon the 1st respondent. The petitioner deposes that all along, they had been dealing with Bamburi police station, but here they chose to sue the Directorate of Criminal Investigations, Mombasa Regional Police Headquarters yet purport to serve the documents upon Bamburi police station, why? I find that this was deliberately and mischievously made in order to mislead. Service of the documents should have been made upon the Directorate of Criminal Investigations, Mombasa Regional Police Headquarters who then would have transmitted them to Bamburi police station if that was the station dealing with the case or better still the petitioners should have sued Bamburi police station for that matter. In the circumstances of this case, I find that there was no service at all upon either the Directorate of Criminal Investigations, Mombasa Regional Police Headquarters or Bamburi police station.
36. The power to set aside an order or judgment is an exercise of discretion but where there was no service at all, the same is a matter of law and therefore of right. In the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) the Court of Appeal while considering the effect of a failure to serve summons to enter appearance said:
“The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”
37. Although that decision was made when considering the issue of default judgment, I am satisfied that the principles therein equally apply where other primary process such as failure to serve an application is under consideration as herein.
38. Learned counsels for the respondents have submitted that the respondents right to a fair hearing were breached by the failure to serve the application upon them thereby leading to adverse orders being issued without hearing their side of the story. I cannot agree more. Indeed, in the cited case of James Kanyiita above, the Court of Appeal in underscoring the issue said:
“The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
39. I am satisfied upon considering the affidavits filed herein and the submissions by learned counsels that the petitioner’s application dated 12/4/2024 and this court’s interim orders of stay of proceedings in Shanzu Magistrates Court Criminal Case No. E311 of 2024 issued on 17/4/2024 which bore the date for inter partes hearing of the application were never served upon the respondents.
40. I thus find that there is sufficient ground for setting aside the order of stay of proceedings in Shanzu Magistrates Court Criminal Case No. E311 of 2024 granted herein on 2/5/2024 as the conduct of petitioners does not warrant them to enjoy the stay order since they failed to serve the application and interim orders of this court together with the directions for inter partes hearing upon the respondents. The evidence before this court both from the affidavits of the 1st and 2nd respondents together and that of the 4th respondent as well as the representations by their respective counsels including counsel for the 3rd respondent indicating that the respondents were never served makes me satisfied that indeed there was no service upon any of the respondents before the application came up for inter partes hearing on 2/5/2024.
41. I am therefore convinced that the petitioners do not deserve the orders of stay granted pending the hearing of the petition. The argument by the petitioners that the court is functus officio and cannot revisit the application is misplaced. This court has the inherent discretion to do so under section 3A, CPA to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process.
42. However, I have not found good grounds advanced by the 4th respondent to strike out the application and the prayer for the same is therefore not granted.
43. For the foregoing reasons, I find that the orders of stay granted herein on 2/5/2024 ought to be and are hereby set aside. For clarity, the interim orders of stay issued on 17/4/2024 were spent and therefore not in force.
44. Orders accordingly.
Ruling dated, signed and delivered in Open Court on the Virtual Platform, Teams this 7th day of March 2025.
HON. JUSTICE ANDAYI W. F.
JUDGE
In the presence of: -
Egunza for the Petitioner/Applicant
Mwanaszumba (Ms) for 1st and 2nd Respondents
Vallerie (Ms) h/b for Mr. Ngiri for the 3rd Respondent
Mangale for 4th Respondent
Johnson h/b for Etropia - Court Assistant
2. By way of background, the petitioners filed a petition herein dated 12/4/2024 praying for orders that declarations be issued by this court that the actions of the DCI, the NPS and DPP, the 1st to 3rd respondents in seeking to have the 1st and 2nd petitioners arrested and charged before Shanzu Law Courts in Criminal Case No. E311 of 2024 on charges of obtaining money by false pretences contrary to section 313 of the Penal Code (Cap. 63) Laws of Kenya and against the 1st, 2nd and 3rd petitioners in Criminal Case No. E090 of 2024 on similar charges is unlawful, unconstitutional, and a breach of their fundamental rights and freedoms as enshrined in the Bill of Rights of the Constitution of Kenya as well as an abuse of the criminal justice system, misuse of public office by the DCI, NPS and DPP for purposes of achieving ulterior and improper motives. They also sought an order to forbid the 1st, 2nd and 3rd respondents from proffering the said criminal charges or any other charges against the petitioners on complaints made by the 4th respondent either by herself, proxies, family members, servants, employees and/or any other such person as instructed by the 4th respondent in relation to and arising out of the sale and purchase (conveyance) of Massionate No. 57 and 58 Phase 2 Bamburi Parkside Situate on Plot No. Sub-division Number MN/II/343 and finally an order to forbid the proceedings in the said Criminal Case No. E311 of 2024 against the 1st and 2nd petitioners.
3. Alongside the petition, they also filed a Notice of Motion application dated 12/4/2024 under Certificate of Urgency seeking orders of stay of proceedings against plea taking, arraignment, reading of charges, continued prosecution of the applicants in Shanzu Magistrates Court Criminal Case No. E311 of 2024 Republic v Ali Abdallah Ragude and Another pending the hearing and determination of the petition filed alongside the application. They also sought an order that the said proceedings and the summonses to attend court for plea taking pending the hearing and determination of the petition be terminated for failing the constitutional threshold for being unfounded, malicious, oppressive and otherwise unconstitutional.
4. On 17/4/2025 this court (Hon. Justice Gregory Mutai), granted interim orders of stay of proceedings pending inter partes hearing on 2/5/2024. On the date for inter partes hearing the court being satisfied that the application was duly served but there was no response thereto granted the orders sought in the application for stay of proceedings pending hearing and determination of the petition.
5. On 22/5/2024, the 4th respondent Alice Muthoni Kingori filed the present application by way of Notice of Motion dated 16/5/2024 under certificate of urgency seeking orders that this court exercises its supervisory power of revision (sic) and revise, vary and set aside the ex parte order issued on 17/4/2024 and the order issued on 2/5/2024 ex debito justitiae and also that the court strikes out the application dated 12/4/2024.
6. When the matter came up for mention for directions on the hearing of the petition, learned counsels for all the respondents kept contending that they had never been served with the Petitioner’s application dated 12/4/2024. Learned counsel for the Petitioner’s Mr. Egunza on his part insisted that he had served the application and the petition and filed the requisite affidavits of service.
7. In order to address all the issues conclusively, the court directed that the petitioners serve their application dated 12/4/2024 upon the respondents and that the two applications be heard concurrently and a ruling given. Having now carefully considered the entire pleadings and proceedings in this matter, I find that the disposal of the present application dated 16/5/2024 is sufficient and it is unnecessary to go back to reconsider the application dated 12/4/2024 by the petitioners as the same was considered and granted by this court earlier.
8. The present application is expressed to be brought under Articles 50(2)(e), 159 and Article 165(6) and (7) of the Constitution of Kenya, Sections 362 & 364 of the Criminal Procedure Code; Section 4 (2) (b) of the Victims Protection Act No. 17 of 2014; and all other enabling provisions of the Law and the Inherent Jurisdiction of the Court.
9. The grounds in support of the application are as outlined on the face thereof as well as in the supporting affidavit of Alice Kingori Muthoni sworn on 16/5/2024.
10. The grounds on the face of the application are numerous but the gist of them is that there was no service of the application dated 12/04/2024, the Order obtained on 17/04/2024 and a hearing date for inter partes hearing of the said application upon the 4th Respondent and the proceedings were irregular as they were conducted without participation of the 4th Respondent who was not aware that the same had been filed and that it had been set for hearing on 02/05/2024.
11. In response to the application, Ali Abdallah Ragude, on his behalf and that of the 2nd and 3rd petitioners/respondents swore an affidavit on 20/9/2024. He deposes that all the respondents were duly served with the application and the court order issued on 17/4/2024. He has annexed to his replying affidavit an affidavit of service sworn on 19/4/2024 by Charles Mokaya Monari, process server to support that contention.
12. He deposes further that if the main issue of the 4th respondent’s application is that there was no service of the application and orders upon her then the 4th respondent ought to have applied at the same time of filing this application, an application to cross-examine the process serve Charles Mokaya Monari which she has not done.
13. In response to the application, the 1st and 2nd respondents through the Attorney General filed a replying affidavit by Ezekiel Rotich, the OCS Bamburi police station sworn on 7/8/2024. He deposes that they support the current application by the 4th respondent. He also denied service of the petition, application dated 12/4/2024 by the petitioners and ensuing orders of this court of 17/4/2024 and 2/5/2024 upon the 1st and 2nd respondents. He deposes that the 1st and 2nd respondents learnt of the said application and orders on 2/5/2024 when Magistrate’s Criminal Case No. E311 of 2024 came up for plea taking when the petitioner’s advocate produced the order to the court. However, they were only able to see the documents on 22/7/2024 when the AG forwarded to them who on their part had been served on 28/6/2024 after this court on 27/6/2024 directed that they be served within three days.
14. In response to the affidavit of service by the process server annexed to the replying affidavit of the petitioner, the 1st and 2nd respondents state that the e-mail address indicated therein as having been used to serve the 2nd respondent, National Police Service is in fact for the National Police Service Commission which is not a party to the petition. With respect to the stamp bearing the name of Bamburi police station on the document by the process server Charles Mokaya Monari, he deposes that it is not signed nor does it bear a date-stamp in order to ascertain whoever received it and the time as is the practice.
15. The application was disposed of by way of submissions filed by learned counsel for the 1st and 2nd respondents as well as for the 4th respondents. Learned counsels for the petitioners and for the DPP did not file submissions.
16. Learned counsel for the 4th respondent/applicant has set out some six issues for determination but for me the real issue is just one, whether the order issued by this court on 2/5/2024 for stay of proceedings in Shanzu Magistrates Court Criminal Case No. E311 of 2024 should be varied, set aside or discharged.
17. Learned counsel for the 4th respondent/applicant cites Rule 11(5) of the Industrial Court (Procedure) Rules under Cap. 234 but whose application to the present application I do not find relevant.
18. Learned counsel submits that there is no evidence provided to this court to prove that the petition, application dated 12/4/2024 and orders of this court dated 17/4/2024 were served upon any of the respondents as there is no document signed by any person receiving them and for that reason the order of 2/5/2024 confirming the interim orders of 17/4/2024 was obtained in an irregular manner.
19. Learned counsel submits that in view of the failure to serve the said documents upon the respondents, their rights to a fair hearing under article 50(1) of the Constitution were violated as they were condemned unheard. Further, that the failure was in breach of the order issued on 17/4/2024.
20. Learned counsel relies on the cases of Andrew Nthiwa Mutuku v Court of Appeal & 3 others [2021] KEHC 8264 (KLR) and Prasul Jayantilal Shah v Republic; Joseph Karuoro Claudio (Interested Party) [2022] KEHC 1778 (KLR).
21. I find the other submissions about the jurisdiction of this court to consider the application at hand and the issue of contempt of court by the petitioners of the lower court orders not to be in line with this application.
22. Learned counsel Mwanaszumba, for the AG appearing for the 1st and 2nd respondents submits that the two were never served in compliance with Order 5 Rule 13 of the Civil Procedure Rules (CPR) and Rule 14(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2014. She also relies on the case of Law Society of Kenya v Martin Day & 3 others [2015] eKLR on the importance of adhering to the provisions of law with regard to service of process.
23. Learned counsel also submits that the failure to serve process upon the respondents was in breach of their right to a fair hearing in order to be able to appear in court and present their side of the story and defend the case against them as guaranteed under Article 50(1) of the Constitution.
24. Learned counsel further submits that under Order 10 rule 11 CPR the court has discretion to set aside the orders issued herein on such terms as it deems fit and just. She has called in aid of her submission the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) on the nature and effect of an irregular service of process.
25. I will start by clarifying that contrary to the submissions by learned counsel for the applicant, this application is not considered under the court’s supervisory power’s over itself as there is no such jurisdiction under the constitution or laws of Kenya. I believe the applicant in the application and submissions by learned counsel meant to pray for a review of the earlier orders.
26. The application herein is basically for this court to review its order dated 2/5/2024. The law that provides for review of court orders is section 80 of the Civil Procedure Act (Cap. 21) Laws of Kenya and order 45 rule 1 of the CPR.
27. Section 80 CPA provides as follows:
“Any person who considers himself aggrieved:
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
28. Order 45 rule 1 CPR sets out the grounds for review as follows:
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
29. The present application by the 4th respondent seeks review of this court’s orders which stayed the proceedings in Shanzu Magistrates Court Criminal Case No. E311 of 2024 issued on 2/5/2024 for reasons that the application dated 12/4/2024, leading to the said orders was never served upon the 4th respondent and the court should therefore review the orders of stay earlier granted on 2/5/2024. Under section 80 CPA and order 45 CPR as expounded in the case of Republic v Public Procurement Administrative Review Board & 2 others [2018] e KLR a review may be granted under the following circumstances:
a. discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
b. on account of some mistake or error apparent on the face of the record, or
c. for any other sufficient reason.
30. Whatever the ground is demonstrated, there is a requirement that the application has to be made without unreasonable delay.
31. The main ground cited by the 4th respondent herein and supported by the 1st and 2nd respondents is that the respondents were not served with the application leading to the grant of the orders of stay and therefore the petitioner is enjoying the protection of the stay orders when they obtained the orders unprocedurally. The present application therefore falls under the ground of “any other sufficient cause.” The petitioners on their part insist that they duly served the application dated 12/4/2024 and order dated 17/4/2024 upon all the respondents.
32. To begin with, there is no affidavit of service upon the 4th respondent. Charles Mokaya Monari filed only one affidavit of service sworn on 19/4/2024 and he alleges service upon the 1st, 2nd, and 3rd respondents only. There is nowhere in that affidavit that he deposes to having served the 4th respondent despite the petitioners making her a party to the petition and the application. The 1st petitioner in his replying affidavit to the present application alludes to service through WhatsApp but the affidavit of Charles Mokaya Monari filed herein and also annexed to the replying affidavit does not make such a deposition.
33. Secondly, with respect to the 1st and 3rd respondents, the affidavit of service alleges to have effected the service upon some unidentifiable persons at the respective offices. I find that the affidavit is deliberately vague on who was allegedly served with respect to the 1st and 3rd respondents and is an indication that there was no such service that was made upon any of them. Mr. Ngiri, learned counsel for the DPP who was prosecuting this matter maintained throughout the proceedings that the DPP had never been served and kept imploring Mr. Egunza learned counsel for the petitioners to serve the documents to no avail. Having carefully looked at the affidavit of service filed by Charles Mokaya Monari, I am now satisfied that there was no service upon the 3rd respondent as Mr. Ngiri kept informing the court.
34. Thirdly, with respect to the 2nd respondent, the National Police Service, it is apparent from Mr. Monari’s affidavit of service that the same was not served upon the NPS but a different entity known as the National Police Service Commission as deposed by Ezekiel Rotich, the OCS Bamburi police station in the replying affidavit sworn on 7/8/2024. That deposition was not discounted by the petitioners.
35. With respect to the 1st respondent it is identified in the pleadings as “the Directorate of Criminal Investigations, Mombasa Regional Police Headquarters.” There is no evidence of service to show that service was effected upon this office. The alleged service at Bamburi Police station was not service at all nor was it service upon the 1st respondent. The petitioner deposes that all along, they had been dealing with Bamburi police station, but here they chose to sue the Directorate of Criminal Investigations, Mombasa Regional Police Headquarters yet purport to serve the documents upon Bamburi police station, why? I find that this was deliberately and mischievously made in order to mislead. Service of the documents should have been made upon the Directorate of Criminal Investigations, Mombasa Regional Police Headquarters who then would have transmitted them to Bamburi police station if that was the station dealing with the case or better still the petitioners should have sued Bamburi police station for that matter. In the circumstances of this case, I find that there was no service at all upon either the Directorate of Criminal Investigations, Mombasa Regional Police Headquarters or Bamburi police station.
36. The power to set aside an order or judgment is an exercise of discretion but where there was no service at all, the same is a matter of law and therefore of right. In the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) the Court of Appeal while considering the effect of a failure to serve summons to enter appearance said:
“The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”
37. Although that decision was made when considering the issue of default judgment, I am satisfied that the principles therein equally apply where other primary process such as failure to serve an application is under consideration as herein.
38. Learned counsels for the respondents have submitted that the respondents right to a fair hearing were breached by the failure to serve the application upon them thereby leading to adverse orders being issued without hearing their side of the story. I cannot agree more. Indeed, in the cited case of James Kanyiita above, the Court of Appeal in underscoring the issue said:
“The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
39. I am satisfied upon considering the affidavits filed herein and the submissions by learned counsels that the petitioner’s application dated 12/4/2024 and this court’s interim orders of stay of proceedings in Shanzu Magistrates Court Criminal Case No. E311 of 2024 issued on 17/4/2024 which bore the date for inter partes hearing of the application were never served upon the respondents.
40. I thus find that there is sufficient ground for setting aside the order of stay of proceedings in Shanzu Magistrates Court Criminal Case No. E311 of 2024 granted herein on 2/5/2024 as the conduct of petitioners does not warrant them to enjoy the stay order since they failed to serve the application and interim orders of this court together with the directions for inter partes hearing upon the respondents. The evidence before this court both from the affidavits of the 1st and 2nd respondents together and that of the 4th respondent as well as the representations by their respective counsels including counsel for the 3rd respondent indicating that the respondents were never served makes me satisfied that indeed there was no service upon any of the respondents before the application came up for inter partes hearing on 2/5/2024.
41. I am therefore convinced that the petitioners do not deserve the orders of stay granted pending the hearing of the petition. The argument by the petitioners that the court is functus officio and cannot revisit the application is misplaced. This court has the inherent discretion to do so under section 3A, CPA to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process.
42. However, I have not found good grounds advanced by the 4th respondent to strike out the application and the prayer for the same is therefore not granted.
43. For the foregoing reasons, I find that the orders of stay granted herein on 2/5/2024 ought to be and are hereby set aside. For clarity, the interim orders of stay issued on 17/4/2024 were spent and therefore not in force.
44. Orders accordingly.
Ruling dated, signed and delivered in Open Court on the Virtual Platform, Teams this 7th day of March 2025.
HON. JUSTICE ANDAYI W. F.
JUDGE
In the presence of: -
Egunza for the Petitioner/Applicant
Mwanaszumba (Ms) for 1st and 2nd Respondents
Vallerie (Ms) h/b for Mr. Ngiri for the 3rd Respondent
Mangale for 4th Respondent
Johnson h/b for Etropia - Court Assistant