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ELCPartially AllowedELC HCC No. 1314 of 2013· [2019] KEELC 2800 (KLR)

June Wanjugu Koinange & 2 others v Francis Kirima M’Kinyua & 10 others [2019] KEELC 2800 (KLR)

Environment and Land Court
24 April 2019
1,764 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court undid eviction orders made when landowners missed a hearing, and ordered their parallel land case and an adverse possession suit heard together.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nairobi (K. Bor, J) determined two interlocutory matters in a land dispute over L.R No. 3811/6 (Original Number 3811/1/2). First, the Defendants' application dated 2/3/2015 sought to set aside the court's ruling of 13/2/2015 on the Plaintiffs' application dated 7/10/2014 (which had sought to strike out the Defendants' defence) and the consequent orders of 19/2/2015 directing eviction of the Defendants and all persons living on the land. The Defendants explained their non-attendance and failure to respond by an inadvertent mistake of a newly employed secretary in their advocates' firm who failed to diarise the matter. The court was satisfied the failure was inadvertent, noted the Defendants had filed a defence showing an intention to defend, and allowed the application, setting the matter for a fresh inter partes hearing, with the costs of the application borne by the Defendants. Second, the Defendants filed a preliminary objection dated 6/7/2015 seeking striking out of the suit for offending Section 6 of the Civil Procedure Act, pointing to the pending HCCC No. 623 of 2009 (O.S) for adverse possession over the same land. The court found the subject matter and substantially the same parties and advocates in both suits, held the claim should strictly have been litigated in the earlier suit, but declined to strike out this suit. Instead it directed that both suits be heard together, with parties to comply with Order 11 of the Civil Procedure Rules and fix the cases for hearing without further delay.

Key legal issues

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01

Setting aside an ex parte ruling obtained through counsel's inadvertent mistake

Holding

The application dated 2/3/2015 was allowed; the ruling of 13/2/2015 and orders of 19/2/2015 (eviction) were set aside because the Defendants' non-appearance was inadvertent and they demonstrated an arguable defence

Reasoning

The court found the secretary failed to diarise the matter due to an administrative mistake, that the Defendants had filed a defence showing intention to defend, and that the eviction orders were issued without the Defendants being heard. A fresh inter partes hearing was warranted, with costs of the application on the Defendants.

p. 2
02

Section 6 Civil Procedure Act - subjudice and disposition of parallel suits

Holding

The preliminary objection did not result in striking out the suit; instead both suits raising the same question of facts over the same land were directed to be heard together

Reasoning

The court found the subject matter and substantially the same parties in both suits, with the same advocates, and that the claim should strictly have been litigated in the earlier-filed HCCC No. 623 of 2009 (O.S). Rather than striking out, it exercised its earlier direction that the files be heard together.

p. 3

Legal principles established

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  • Section 6 of the Civil Procedure Act bars a court from proceeding with the trial of a dispute that is directly in issue in another court of competent jurisdiction
  • Where a party's failure to respond was due to inadvertent mistake of counsel, and a defence shows an intention to defend, a default ruling may be set aside so the dispute is heard on its merits

Court orders

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  1. 1.The court's ruling of 13/2/2015 on the Plaintiffs' application dated 7/10/2014 and the subsequent orders of 19/2/2015 set aside
  2. 2.The Defendants' application dated 2/3/2015 allowed
  3. 3.Costs of the application dated 2/3/2015 to be borne by the Defendants
  4. 4.Both suits (this suit and HCCC No. 623 of 2009 (O.S)) to be heard together
  5. 5.Parties to comply with Order 11 of the Civil Procedure Rules and fix the two cases for hearing without further delay

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Original civil jurisdiction over land disputes under the Environment and Land Court Act (suit relating to L.R No. 3811/6 (Original Number 3811/1/2))

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, "June Wanjugu Koinange & 2 others v Francis Kirima M’Kinyua & 10 others [2019] KEELC 2800 (KLR)", Case Analysis (2019). ELC HCC No. 1314 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2800/eng@2019-04-24

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