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ELCAllowedNot stated in the judgment· [2020] KEELC 2903 (KLR)

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)

Environment and Land Court
5 March 2020
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st and 2nd defendants applied by motion filed on 4 October 2018 to review or set aside the judgment delivered on 20 September 2018 and for leave to change counsel. The underlying suit, commenced by plaint on 14 November 2011, concerned two competing titles over land parcel Kwale/Diani Beach/653: the plaintiff claimed registration as proprietor since 26 November 1992, while the applicants were registered on 11 December 2006, with the Land Registrar (3rd defendant) accused of maintaining two green cards for the same property. During the pendency of the suit, a consent judgment was entered between the plaintiff and the State (for the 3rd, 4th and 9th defendants) declaring the plaintiff owner, granting a permanent injunction and eviction orders, in the absence of the applicants' counsel; the suit against the 6th, 7th and 8th defendants was withdrawn. Judgment was delivered on 20 September 2018 without the applicants' participation. The applicants averred that their then advocates never informed them of the hearing dates. The plaintiff raised a preliminary objection based on unpurged contempt, which the court declined to hear first; the State filed grounds of opposition. The court found no reason to doubt the applicants' averment, held that their defence on the validity of their title was not frivolous, and held that the applicants, not being parties to the consent, could not be bound by it. The application was allowed subject to throw away costs of Kshs. 100,000/= payable within 30 days, failing which the judgment would remain in force. No orders were made as to the costs of the application.

Key legal issues

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01

Whether to set aside a judgment entered in the absence of the applicants whose advocate allegedly failed to communicate hearing dates

Holding

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.

Reasoning

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.

p. 2
02

Whether the applicants were bound by the consent judgment between the plaintiff and the State

Holding

The applicants were not parties to the consent and could not be bound by it.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.M/s Karanja, Gitonga & Waweru Advocates deemed to come on record for the applicants
  2. 2.Judgment delivered on 20 September 2018 set aside, subject to payment of throw away costs of Kshs. 100,000/= within 30 days
  3. 3.If costs are not paid within the time, the judgment will remain in force and the application will have failed
  4. 4.No orders as to the costs of the application
  5. 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

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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, "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.