Julius Ndundi Thethe v Najmudin Noorali Mohammedali (as legal representative of the estate of Mohamed Essajee Bhaijee and the Estate of Noorali M.E. Bhaijee) & another [2018] KEELC 2835 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's bid to overturn adverse possession proceedings, holding his lawyer's walkout forfeited his right to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant was served with summons and process in the suit
The Defendant was properly served; both firms of advocates that acted for him demonstrate receipt of instructions.
The record showed Messrs Mathew Nyabena & Company Advocates came on record for the Defendants on 18th July 2013, and Messrs Apollo Muinde & Company Advocates came on record on 6th February 2015 by Notice of Change of Advocates. The court reasoned that neither firm could have filed representation papers had the Defendant not been served and instructed them. The Plaintiff's assertion of service on 15th July 2013 and the Defendant's failure to file a defence or reply despite representation further supported this finding.
Whether the ex parte proceedings of 28th September 2015 should be set aside
The application to set aside the proceedings and commence de novo failed because the Defendant's own Counsel abandoned the hearing.
On 28th September 2015 Mr. Ambwere Advocate held brief for Mr. Muinde and applied for an adjournment, which was opposed and refused. When the matter proceeded at 10.15 a.m., the advocate went missing and the matter proceeded ex parte. The court held the Defendant could not blame anyone for this, as his Counsel's conduct was an attempt to circumvent the orders of the Court. The uncontroverted Plaintiff's submissions therefore carried the day.
Whether the suit is an abuse of process under Section 6 of the Civil Procedure Act
The suit is not abusive; it is distinct from ELC 174 of 2012 (OS) because the claimants and causes of action differ.
The Defendant argued the second suit should be stayed to abide the outcome of Land Case No. 174 of 2012 (OS) under Section 6 of the Civil Procedure Act. The court distinguished the two matters: ELC 174 of 2012 (OS) was filed by an Administrator of the Estate, whereas this suit was filed by the deceased's children claiming a cause of action accrued to them personally. Absent any contrary assertion, nothing justified the abuse-of-process contention.
Legal principles established
#- Where advocates have come on record for a party, an inference of proper service follows, since the firms could not have filed papers to represent the defendant absent service and instructions.
- A party whose Counsel deliberately walks out of a hearing after an adjournment is refused cannot later seek to set aside the resulting ex parte proceedings.
- Suits by different persons asserting different causes of action relating to the same land do not necessarily offend Section 6 of the Civil Procedure Act as an abuse of process.
Court orders
#- 1.The Defendant's application dated 21st July 2016 is dismissed with costs
- 2.A similar application in ELC 174 of 2012 (OS) stands equally dismissed with costs in light of the directions given on 25th February 2014
- 3.The Deputy Registrar of the Court is directed to place the two files before the trial Judge, the Honourable Justice Angote, as soon as possible in Machakos for preparation of a Judgment and/or further directions
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over an interlocutory application in a pending adverse-possession suit under Order 37 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Ndundi Thethe v Najmudin Noorali Mohammedali (as legal representative of the estate of Mohamed Essajee Bhaijee and the Estate of Noorali M.E. Bhaijee) & another [2018] KEELC 2835 (KLR)", Case Analysis (2018). ELC Case (Malindi) – Suit arising from Originating Summons filed 15/11/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2835/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.