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ELCPartially Allowed· [2021] KEELC 2673 (KLR)

Fatuma Mohammed Ali v Boru Dika & 2 others [2021] KEELC 2673 (KLR)

Environment and Land Court
7 July 2021
1,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Meru on a notice of motion dated 23rd October 2020 by the plaintiff, Fatuma Mohammed Ali, seeking review and/or setting aside of the ex-parte hearing of 22/10/2020, the resultant orders dismissing her claim against the 1st and 3rd defendants, and reinstatement of her claim for hearing on a priority basis. The application was brought under Order 10 Rule 11, Order 40 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act, and Article 159 of the Constitution. The plaintiff attributed her non-attendance to lack of service of hearing notices on her advocate and travel difficulties during the Covid-19 pandemic. The 2nd defendant supported the application, while the 1st defendant opposed it as an afterthought and abuse of process, asserting that the plaintiff's advocate was represented on 22.10.2020 and that all parties had been served. The 1st and 3rd defendants also sought Kshs. 100,000 as getting-up fee if the application succeeded. The court held it could not revisit its earlier finding on service but retained inherent power to do justice. Noting that the plaintiff's and 2nd defendant's cases had been closed since 16.4.2018 and only one defence witness remained, the court partially allowed the application, set aside the dismissal orders of 22.10.2020, reinstated the plaintiff's claim, condemned the plaintiff to pay the costs of the application, and dismissed the other prayers. The ruling was delivered electronically pursuant to Covid-19 practice directions.

Key legal issues

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01

Whether the ex-parte dismissal of the plaintiff's claim should be set aside

Holding

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.

Reasoning

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.

p. 2
02

Whether the court could revisit the issue of service already determined on 22.10.2020

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.The plaintiff is condemned to pay the costs of the said application
  3. 3.Other prayers in the application are dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 40 Rule 10
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 3 & 3A
  • Environment and Land Court Act 2011Section 13
  • Constitution of Kenya 2010Article 159

Cases cited (10)

  • Shah V Mbogo & Another
    (1967)
  • Mansion Oyongo Nyamweya V Kithure Kindiki
    [2017] eKLR
  • Peter Kiplagat Rono V Family Bank Limited
    [2018] eKLR
  • Wachira Karani V Bildad Wachira
    [2016] eKLR
  • FM V EKW
    [2019] eKLR
  • Gladys Njeri Kirugumi vs. Langata development Co ltd & Another
    (2016) eKLR
  • Francis Njoroge V Stephen Maina Kamore
    [2018] eKLR
  • Paul Gitonga Wanjau V Gathuthi Tea Factory Company Ltd & 2 Others
    [2016] eKLR
  • Karuthu Magiri V John Kaburu Magiri & 3 Others
    [2020] eKLR
  • Consolidated Bank of Kenya Limited v Jared Otieno Ochungo t/a Girth Construction & 2 others
    [2014] eKLR
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

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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, "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.