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Court of AppealDismissedCourt of Appeal Appeal (not stated in judgment)· [2024] KECA 1167 (KLR)

Rukia Hassan & 3 others v Mohammed Hassan Ali & 4 others

Court of Appeal of Kenya
20 September 2024
3,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed an appeal seeking to overturn a judgment entered after the defendants missed their hearing, confirming parties must actively follow up their own cases.

What this practically means

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Executive summary

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The respondents, trustees of the estate of the late Ali Nguma appointed by the Principal Kadhi in Mombasa Succession Cause No. 158 of 2007, sued the appellants for injunctions and demolition of structures erected on plots comprising the estate. The appellants filed a joint statement of defence but, despite service of hearing notices received without reservation, neither they nor their counsel attended the hearing. On 9th July 2020 the High Court entered judgment in the respondents' favour, including a mandatory injunction to vacate and demolish the structures within sixty days and a permanent injunction. The appellants then filed a Notice of Motion seeking stay of execution and setting aside of the ex-parte judgment, arguing that their counsel's illness prevented attendance and that the mistake of counsel should not be visited on innocent litigants. The respondents opposed, contending the application was an abuse of process, that the appellants had been duly served throughout, and that the defence was a mere denial. By a ruling dated 23rd March 2023 the High Court dismissed the application. On a first appeal, the Court of Appeal applied rule 31(1) of the Court of Appeal Rules and the principles in Mbogo v Shah, Kwanza Estates and CMC Holdings, holding that the trial judge properly exercised his discretion: the illness claim was unsupported by any evidence; the record showed service without reservation at all times; the appellants showed no interest in their case until judgment was entered; and parties are equally responsible for following up their matters with counsel. The complaint that the defence raised triable issues also failed. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the High Court rightly declined to set aside the ex-parte judgment under Order 10 rule 11 of the Civil Procedure Rules

Holding

The appeal against the refusal to set aside was dismissed; the judge properly exercised his discretion.

Reasoning

Order 10 rule 11 confers a discretionary power to set aside a judgment entered under that Order. The trial judge declined to set aside the judgment on two grounds: the explanation for non-attendance was unsatisfactory as the hearing notice was served on counsel's firm and received without reservation, and no evidence was adduced to support the illness claim; and the defence did not raise triable issues, amounting to mere denials. The Court of Appeal found the judge considered relevant matters and did not misdirect himself.

02

Whether the mistake or illness of counsel should excuse non-attendance and allow setting aside of the judgment

Holding

No; blame on counsel alone is insufficient and parties must show vigilance and take tangible steps to follow up their matters.

Reasoning

The Court reaffirmed that parties are equally responsible for their cases and must follow up their matters with counsel. The appellants expressed no interest in the case until judgment was entered, and produced no evidence of counsel's illness. Their lack of vigilance meant they could not claim their constitutional right to be heard was denied.

p. 6
03

Whether the appellants were condemned unheard contrary to their constitutional right to be heard

Holding

No; the appellants had the opportunity to defend the suit in the first instance and failed to attend court despite service, and later had an opportunity to be heard on the setting-aside application.

Reasoning

The trial court gave the appellants the opportunity in the first instance to defend their case; they filed appearance and a defence but did not attend the hearing despite service without reservation. They were further heard on their Notice of Motion to set aside judgment, which they failed to support with evidence. Their failure to participate pointed to lack of interest, not denial of the right to be heard.

p. 6
04

Whether the appellants' defence raised triable issues

Holding

The complaint failed; the appellants did not show where the trial judge went wrong on this point.

Reasoning

The Court found the appellants had not pointed out where the trial judge erred in concluding that the defence was a mere denial raising no triable issues. Nothing turned on this complaint.

p. 6

Legal principles established

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  • On a first appeal from the High Court's original jurisdiction, the Court of Appeal must re-appraise, re-evaluate and re-analyze the record and draw its own conclusions, departing from the trial court's findings only where they were not based on evidence, where wrong principles were applied, or where discretion was exercised injudiciously.
  • It is not sufficient for a party to blame their counsel for acts or omissions in the conduct of a matter; parties are equally responsible for their cases and must follow up on the progression of their matters with their counsel.
  • A party alleging that counsel's illness caused non-attendance at a hearing bears the evidential burden of supporting that averment with evidence.
  • An appellate court will not interfere with the exercise of discretion by a trial judge unless the decision is clearly wrong because the judge misdirected himself, acted on matters he should not have acted on, or failed to consider matters he should have considered.

Court orders

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  1. 1.The appeal lacks merit and is dismissed with costs to the respondents
On appeal from
High Court of Kenya (original jurisdiction)
not stated in judgment
Jurisdiction invoked
First appeal under rule 31(1) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rukia Hassan & 3 others v Mohammed Hassan Ali & 4 others", Case Analysis (2024). Court of Appeal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1167/eng@2024-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.