Ahmed Salim Abdalla Bawazir & 2 others v Ali Aboud Abdallah [2018] KEELC 4016 (KLR)
The bottom line
#A Malindi court refused to undo an eviction because the man served was properly notified and his defence raised no genuine claim to the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant was served with the suit papers on 22nd June 2016
The court found on the balance that the Defendant was served; the Chief's letter relied on was an afterthought
The Process Server's affidavit stated he met the Defendant outside the house and served him, accompanied by the 1st Plaintiff who knew the Defendant. The Chief's letter was dated the same day, referenced a function ending that very day, and named the Defendant as the permit holder, which the court found to be an afterthought. The Defendant's family had long resided on the disputed land, making mistaken identity implausible.
Whether the draft Defence and Counterclaim discloses a triable issue
It does not; the Defendant was a tenant at will whose occupation stemmed from his engagement as a Madrassa teacher
The Plaintiffs, as administrators of the registered owner, were entitled to possession after the Defendant's services were no longer required. No evidence showed any agreement permitting him to build or claim ownership. His claimed rights arising from his Madrassa engagement gave him no ownership or possessory rights, and mediation through SUPKEM having failed, due process eviction was proper.
Whether the orders of 28th June 2016 could be stayed or set aside
No; execution had already been completed pursuant to a lawful court order before the application was filed
The eviction occurred on or about 19th July 2016, two months before the application of 14th September 2016. A stay of already-executed orders was impracticable, and the underlying orders were lawfully issued after proper service.
Legal principles established
#- The power to set aside an ex-parte order or default judgment is a discretionary power exercised with the main aim of doing justice to all the parties
- A party seeking to set aside a regular judgment must demonstrate a defence on the merits, i.e. a triable issue
Court orders
#- 1.The Defendant's Notice of Motion dated 14th September 2016 is dismissed with no order as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property in Kilifi County (statutory basis not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed Salim Abdalla Bawazir & 2 others v Ali Aboud Abdallah [2018] KEELC 4016 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4016/eng@2018-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.