Egerton University v Mohamed Salim Hussein & 61 others [2019] KEELC 4936 (KLR)
The bottom line
#The court dismissed squatters' attempt to overturn an eviction judgment because they had knowingly delayed nearly three years and had no real defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte judgment should be set aside under Order 10 Rule 11
Application dismissed; the Defendants were aware of the judgment from November 2015, participated through counsel, and the delay was inordinate and unexplained
The record shows Katsoleh & Company Advocates came on record, cross-examined witnesses and filed a defence. The Defendants applied to stay the judgment in November 2015 and filed a Notice of Appeal, proving knowledge of the judgment long before August 2018. Their claim to the contrary was a deliberate attempt to mislead the court, and no explanation was offered for the inordinate delay in bringing the application.
Whether the Defendants have a triable issue/defence on merits
No triable issue; the intended defence raises the same matters already struck out in Malindi ELC No. 67 of 2013 and the land was Government land allocated to the Plaintiff
The land was allocated to the Plaintiff, a public university, in November 2001. Nothing demonstrated any right of the Defendants to occupy it privately. Their claim rests on alleged overriding interests already rejected when a prior suit raising identical averments was struck out for disclosing no cause of action, and they remained illegal squatters with no legitimate expectation of allocation.
Legal principles established
#- The court has discretion to set aside an ex-parte judgment on such terms as are just, with the main concern being to do justice to the parties
- The discretion to set aside an ex-parte judgment is not designed to assist a party who deliberately obstructs or delays the cause of justice
- Where there was proper service and the applicants participated through an advocate, the applicant must demonstrate a defence on the merits before judgment is set aside
- Illegal occupation of government land confers no legitimate expectation of allocation regardless of the length of occupation
Court orders
#- 1.The Defendants' Notice of Motion dated 5th September 2018 is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules; Section 152F(2) of the Land Laws Amendment Act, 2016 (invoked by the Defendants)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Egerton University v Mohamed Salim Hussein & 61 others [2019] KEELC 4936 (KLR)", Case Analysis (2019). Malindi ELC Case (Notice of Motion dated 5th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4936/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.