Fatuma Mohammed Ali v Boru Dika & 2 others [2021] KEELC 2673 (KLR)
The bottom line
#A Kenyan land court reinstated a claim dismissed in her absence but made her pay costs because she knew the hearing date.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte dismissal of the plaintiff's claim should be set aside
The court partially allowed the application, setting aside the dismissal orders of 22.10.2020 and reinstating the claim, despite having earlier found the plaintiff aware of the hearing date.
The court noted it had already ruled on service on 22.10.2020 and could not revisit that issue, but it retained inherent power to do justice. Considering that the plaintiff's and 2nd defendant's cases had been closed since 16.4.2018 and the 1st and 3rd defendants' case was nearly complete with only one witness remaining, the matter was at the tail end of litigation. Balancing the circumstances, the court found reinstatement deserved in the interests of justice, while condemning the plaintiff to costs.
Whether the court could revisit the issue of service already determined on 22.10.2020
The court declined to re-examine service, holding it could not revisit a decision already rendered, but could still examine the circumstances to determine whether the orders sought were deserved.
The court had made a finding on 22.10.2020 that the plaintiffs were aware of the hearing date. That determination stood and could not be reopened. Nevertheless, the inherent jurisdiction to prevent injustice allowed the court to examine the overall circumstances, including the advanced stage of the hearing, in deciding whether to set aside the ex parte orders.
Legal principles established
#- The court's discretion to set aside ex parte orders is exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to delay justice
- A person against whom a claim is made must be given a reasonable opportunity of appearing and presenting his case; failing which any determination affecting him must be set aside
Court orders
#- 1.The orders of 22.10.2020 dismissing the plaintiff's claim against the 1st and 3rd defendants are set aside and the said case is reinstated
- 2.The plaintiff is condemned to pay the costs of the said application
- 3.Other prayers in the application are dismissed
- Jurisdiction invoked
- Order 10 Rule 11, Order 40 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules, Section 3 & 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act 2011, Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fatuma Mohammed Ali v Boru Dika & 2 others [2021] KEELC 2673 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2673/eng@2021-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.