Mhandisi Enterprises Limited v Mohammed Swalehe Mwajembe, Rama Omari Chimwega, District Land Registrar Kwale, Attorney General, Mary Ndale Kai, Omar Athumani, Athumani Juma, Muhamed Swallehe & Kwale District Survey Office (Environment & Land Case 126B of 2011) [2020] KEELC 2903 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a Diani Beach judgment, ruling that parties absent when a consent was entered cannot be bound by it.
What this practically means
#Executive summary
#Key legal issues
#Whether to set aside a judgment entered in the absence of the applicants whose advocate allegedly failed to communicate hearing dates
The application was allowed; the applicants' averment that their advocate never informed them of the hearing date was uncontroverted, and they had a defence worth ventilating as to which title over the land is genuine.
The court found no evidence contradicting the applicants' claim that counsel never communicated the hearing dates. Their defence - that their own title, not the plaintiff's, was the valid one - was not frivolous. Since the consent judgment was between the plaintiff and the State, the applicants, not being parties to it, could not be bound. The plaintiff would suffer no prejudice beyond costs, which were addressed through thrown away costs of Kshs. 100,000/=. Setting aside the judgment served the interest of having the dispute heard on the merits.
Whether the applicants were bound by the consent judgment between the plaintiff and the State
The applicants were not parties to the consent and could not be bound by it.
The consent judgment of 8 March 2015 was entered between the plaintiff and the State on behalf of the 3rd, 4th and 9th defendants in the absence of the applicants' counsel. The court reasoned that because the applicants were strangers to that consent, they could not be bound by it and were entitled to have their defence on the competing titles heard.
Legal principles established
#- A party who was not privy to a consent judgment cannot be bound by it.
- A party should not be denied a hearing because their advocate failed to communicate the hearing date.
Court orders
#- 1.M/s Karanja, Gitonga & Waweru Advocates deemed to come on record for the applicants
- 2.Judgment delivered on 20 September 2018 set aside, subject to payment of throw away costs of Kshs. 100,000/= within 30 days
- 3.If costs are not paid within the time, the judgment will remain in force and the application will have failed
- 4.No orders as to the costs of the application
- 5.Further directions to be given on how to proceed
- Jurisdiction invoked
- Inherent powers of the court to set aside judgment; application filed before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mhandisi Enterprises Limited v Mohammed Swalehe Mwajembe, Rama Omari Chimwega, District Land Registrar Kwale, Attorney General, Mary Ndale Kai, Omar Athumani, Athumani Juma, Muhamed Swallehe & Kwale District Survey Office (Environment & Land Case 126B of 2011) [2020] KEELC 2903 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2903/eng@2020-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.