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ELCAllowedNot stated in judgment· [2018] KEELC 1511 (KLR)

Badawy Muhudhari Mohamed v Maimuna Ali Athman [2018] KEELC 1511 (KLR)

Environment and Land Court
11 October 2018
JOJ.O. Olola
944 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside ex-parte orders that would have evicted a woman, ruling her side must be heard first.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Malindi on a Notice of Motion dated 20th March 2017 in which the Defendant, Maimuna Ali Athman, sought discharge or setting aside of orders granted on 3rd February 2017 allowing the Plaintiff's application for injunction restraining her from occupying a house on an unregistered plot at Bajuri/Taifa in Lamu. The Defendant blamed her previous advocates for failing to file a Replying Affidavit to that application. The Plaintiff opposed, accusing the Defendant of dishonesty and of having been represented by an advocate throughout. The court, applying Order 10 Rule 11 of the Civil Procedure Rules and the principles in Patel v EA Cargo Handling Services Ltd and Shah v Mbogo, noted that the parties were formerly husband and wife, divorced before the Kadhi in Lamu in March 2013, and that the Defendant and her three children continued occupying the house. The record showed the Defendant had personally filed numerous documents, including a Written Statement of Defence, lists of documents and witnesses, her statement and three affidavits, before the application was heard. The court concluded that the failure to respond was likely an omission by her then advocates, and that it would be fair and just to hear her side before she was evicted from a house she claimed as her own. The court allowed the application, set aside the orders of 3rd February 2017, gave the Defendant 21 days to respond to the Plaintiff's application, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether the ex-parte orders of 3rd February 2017 ought to be set aside

Holding

The orders were set aside because the Defendant's failure to respond was attributable to her advocates' omission and she had demonstrated diligence in defending the suit

Reasoning

The court noted that the Defendant had, before the hearing of the application, filed in person a Written Statement of Defence, List of Documents, List of Witnesses, her Statement and three supporting Affidavits, showing preparedness to defend her case. The failure to file a Replying Affidavit was likely an omission by her then advocates. Since the orders would evict her from a house she occupied and claimed as her own, it was fair and just to hear her side before drastic action.

p. 2

Legal principles established

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  • The discretion to set aside an ex-parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to reward deliberate obstruction
  • The court has a wide discretion to set aside or vary judgment under Order 10 Rule 11, to be exercised to do justice to the parties

Court orders

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  1. 1.The application dated 20th March 2017 is allowed and the Orders of 3rd February 2017 are set aside
  2. 2.The Defendant shall have 21 days from the date of the ruling to respond to the Plaintiff's application
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (2)

  • Patel –vs- EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –vs- Mbogo
    (1967) EA 166
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure 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, "Badawy Muhudhari Mohamed v Maimuna Ali Athman [2018] KEELC 1511 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1511/eng@2018-10-11

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