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ELCPartially AllowedNot stated in judgment (Mombasa ELC; ex-parte judgment dated 17/1/18)· [2018] KEELC 2455 (KLR)

Ali Mohamed Musa & 6 others v Mahmood Hassam & 4 others [2018] KEELC 2455 (KLR)

Environment and Land Court
17 July 2018
CYC. Yano
2,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court set aside a judgment entered without notice to landowners, let them defend the case, and protected their possession of the land in the meantime.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Mombasa by C. Yano J determined two unopposed applications by the Defendants, arising from an ex-parte judgment dated 17 January 2018 and consequential orders of 30 January 2018 in a suit over land parcel LR No.819/II/MN (formerly Plot No.324/III/MN), measuring approximately 314 acres/hectares. The Defendants, claiming to be registered proprietors in occupation since the 1960s through dairy farming and transport businesses, argued they were never served personally and only learned of the suit on 19 March 2018; they further contended the claim was res judicata (HCCC No. 298 of 2013, dismissed after a court visit found no squatter occupation) and sub judice (Constitutional Petition No. 74 of 2014, in which an injunction existed against the alleged squatters). Applying Patel v East Africa Cargo Handling Services and Shah v Mbogo, the court held the Defendants had given sufficient reasons to set aside the ex-parte judgment, that the Plaintiffs would suffer no prejudice, and that the overriding objective favoured hearing the case on merit; it allowed the 22 March 2018 application, directed the Defendants to file their defence within 14 days, with costs in cause. Applying Giella v Cassman Brown, the court found a prima facie case, potential irreparable damage and balance of convenience favouring the Defendants, granting the 10 April 2018 application in terms of prayers 2, 3 and 5: a temporary injunction against entry or interference, a court visit and inspection of the property, and police assistance in enforcement, with costs to the Defendants. A permanent injunction was not granted at the interlocutory stage.

Key legal issues

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01

Setting aside ex-parte judgment and stay of execution

Holding

Application allowed; Defendants gave sufficient reasons (alleged non-service, triable issues, res judicata/sub judice claims) and Plaintiffs would suffer no prejudice

Reasoning

The court applied the Patel and Shah v Mbogo principles on setting aside ex-parte judgments. The Plaintiffs did not oppose the application, so the Defendants' averments of non-service, occupation, and the existence of prior and pending suits were unchallenged. Allowing the application served the overriding objective by letting the case be heard on merit, and the Plaintiffs would suffer no prejudice.

p. 3
02

Interlocutory injunction to preserve possession of the suit property

Holding

Temporary injunction granted; registered proprietors in occupation established prima facie case, irreparable damage and balance of convenience

Reasoning

The Defendants exhibited a certificate of title showing registration and annexed photographs of structures, cattle and vehicles evidencing exclusive possession. The Plaintiffs' unchallenged intended actions could change the status of the property in a way not compensable in damages, and the balance of convenience favoured the Defendants in occupation pending determination of the suit.

p. 4

Legal principles established

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  • The court has wide discretion to set aside ex-parte judgments, to be exercised on just terms and with a view to doing justice to the parties
  • Where a regular judgment is in place, the court will usually not set it aside unless satisfied there is a defence on merits amounting to a triable issue
  • The discretion to set aside is meant to avoid injustice, not to reward those who deliberately obstruct the course of justice
  • Applicant for interlocutory injunction must establish a prima facie case with probability of success, irreparable damage, and failing which balance of convenience

Court orders

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  1. 1.Application dated 22nd March 2018 allowed; ex-parte judgment and consequential orders set aside/stayed and Defendants allowed to defend the suit; Defendants to file defence within 14 days; costs in cause
  2. 2.Application dated 10th April 2018 allowed in terms of prayers 2, 3 and 5: temporary injunction restraining Plaintiffs from entering, constructing, cultivating, cutting vegetation or interfering with the Defendants' quiet possession of LR No.819/II/MN; the Court to visit and inspect the suit property; officer-in-charge of Kiembeni police post to assist in enforcing the orders
  3. 3.Defendants awarded costs of the 10th April 2018 application

Authorities

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Legislation

  • High Court (Organization and Administration) (General) Rules, 2016Rules 15, 16 and 17
  • Civil Procedure ActSections 3A, 6, 7 and 63(e)
  • Constitution of Kenya, 2010Articles 40, 50 and 162(2)
  • Civil Procedure RulesOrder 40 Rules 1(a), 7 and 10(1)(a) & (c)
  • Environment and Land Court ActSection 13

Cases cited (3)

  • Patel – v – East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Shah – v – Mbogo
    (1967) EA 116
  • Giella - v - Cassman Brown & Co Ltd
    (1973) EA 358
Jurisdiction invoked
Articles 40, 50 and 162(2) of the Constitution; Environment and Land Court Act Section 13; Civil Procedure Act

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, "Ali Mohamed Musa & 6 others v Mahmood Hassam & 4 others [2018] KEELC 2455 (KLR)", Case Analysis (2018). Not stated in judgment (Mombasa ELC; ex-parte judgment dated 17/1/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2455/eng@2018-07-17

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