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ELCDismissedMombasa ELC Case No. 86 of 2016 (formerly Mombasa HCCC No. 74 of 2015)· [2018] KEELC 4569 (KLR)

Sheich Mohamed Ali & 4 others v Hamio Mohamed Abdulkadir [2018] KEELC 4569 (KLR)

Environment and Land Court
6 February 2018
CYC. Yano
2,338 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to overturn a default judgment because the defendant gave a misleading explanation and had a weak defence.

What this practically means

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Executive summary

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The Defendant, Hamid Mohamed Abdulkadir, brought a Notice of Motion dated 28th April 2017 seeking a stay of execution and setting aside of an ex-parte judgment entered against him on 10th April 2017 in a claim by the Plaintiffs for vacant possession, rent arrears from 1997 and mesne profits. He argued that confusion arising from the transfer of the suit from the High Court (Mombasa HCCC No.74 of 2015) to the Environment and Land Court (ELC Case No.86 of 2016) meant he was unaware of the hearing date fixed ex-parte for 20th February 2017, and that his defence raised triable issues. The Plaintiffs opposed, contending that the Defendant had been duly served throughout, had been dilatory even before the transfer, and had become active only after judgment; they alternatively sought conditional setting aside upon deposit of the decretal sum. The court, applying Shah v Mbogo, Mbogo v Shah and Patel v E.A. Cargo Handling Services Ltd, held that the discretion to set aside ex-parte judgments exists to avoid injustice from inadvertence or excusable mistake but not to assist parties who obstruct or delay justice. Examining the record, the judge found identical 'received without prejudice' stamps on notices served both before and after the transfer, undermining the Defendant's claim of ignorance of the new case number. His explanation was held not candid, his pre-transfer non-attendance showed disregard of service, and his defence was a sham - ownership was not denied, rent payment was unproven beyond Kshs.79,500, and a limitation plea raised only in submissions was an afterthought. The application was dismissed with costs.

Key legal issues

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01

Whether sufficient cause was shown for the Defendant's non-attendance at the hearing

Holding

No - the Defendant was served with notices both before and after the case transfer, and his explanation of confusion over the change of case number was not candid

Reasoning

The court examined the service history and found the same 'received without prejudice' stamp on documents relating to both HCCC No.74 of 2015, which was known to the Defendant, and ELC Case No.86 of 2016, undermining the claim of ignorance. The Defendant had also failed to attend pre-trial directions before the transfer. The explanation was therefore found unreasonable and inexcusable, and setting aside the judgment on misleading statements would obstruct justice.

p. 3
02

Whether the defence raised triable issues warranting setting aside the judgment

Holding

No - the defence was a sham; ownership was not denied, no evidence of rent payment beyond Kshs.79,500 was shown, and the limitation plea was an afterthought not pleaded

Reasoning

The Defendant did not deny the Plaintiffs' registered ownership. He claimed to have paid Kshs.500,307 in rent but produced evidence of only Kshs.79,500. A limitation argument raised for the first time in submissions, not in the defence, was dismissed as an afterthought. Without bona fide triable issues, the defence could not support setting aside the ex-parte judgment.

p. 4

Legal principles established

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  • The discretion to set aside ex-parte judgment exists to avoid injustice or hardship from inadvertence or excusable mistake, but is not designed to assist a party who deliberately seeks to obstruct or delay the course of justice
  • An applicant for setting aside must show sufficient cause - that he did not act negligently, inactively or without bona fides - a question of fact with no straight-jacket formula
  • A defence on the merits means a defence raising a triable issue, not one that must succeed; but the defence must be bona fide and not a sham

Court orders

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  1. 1.The Notice of Motion dated 28th April 2017 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 63
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 22

Cases cited (5)

  • Patel – v- E.A. Cargo Handling Services Ltd
    (1974) EA 75
  • Wachira Karani –v- Bildad Wachira
    (2016) eKLR
  • Shah –v- Mbogo & Another
    (1967) EA 116
  • Mbogo –v- Shah
    (1968) EA 93
  • Parimal –vs – Veena
Jurisdiction invoked
Sections 1A, 1B and 63 of the Civil Procedure Act; Order 10 Rule 11 and Order 22 Rule 22 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, "Sheich Mohamed Ali & 4 others v Hamio Mohamed Abdulkadir [2018] KEELC 4569 (KLR)", Case Analysis (2018). Mombasa ELC Case No. 86 of 2016 (formerly Mombasa HCCC No. 74 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4569/eng@2018-02-06

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