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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the excerpt· [2022] KEELC 1902 (KLR)

Rukiya Abdulrahman Hatimy & another v Mohideen Abdulrahman Mohamed Hatimy & another [2022] KEELC 1902 (KLR)

Environment and Land Court
20 January 2022
1,599 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court set aside a judgment won by default, ruling a defendant with a filed defence deserves to be heard on the merits.

What this practically means

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Executive summary

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The defendants/applicants applied by notice dated 17 May 2021 to set aside an ex parte judgment delivered in March 2019 in a sibling dispute over Mombasa/Block IX/109, developed with four flats. The plaintiffs/respondents sued in March 2014 claiming joint ownership and sought to restrain the applicants from interfering with the property. The applicants filed a defence and counterclaim in April 2014 pleading a 2002 property distribution agreement vesting the property in the 1st defendant and one Sheikh Nurein Abdulrehman Mohamed Hatimy, and seeking declarations and injunction. Despite the defence on record, the matter was listed for a 'formal proof' hearing on 4 December 2018 after the applicants' counsel (M/s Ojode Udoto & Onjoro) failed to attend despite service of a hearing notice; the plaintiffs' counsel stated no defence had been filed. Judgment was entered for the plaintiffs, with the judge expressing sentiment that the court had been misled. Munyao Sila J held that the hearing could not properly have been formal proof given the defence and counterclaim on record, that no pretrial conference had occurred, and that the court could not know what directions it would have given had it known of the defence. Benefit of doubt was given to the applicants, whose non-attendance was probably a mistake of counsel not to be visited on them, and whose defence raised triable issues. The application was allowed and the ex parte judgment set aside. Because the respondents' counsel's misstatement contributed to the ex parte proceedings, each party was ordered to bear their own costs of the application.

Key legal issues

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01

Validity of the formal proof hearing conducted despite a defence and counterclaim on record

Holding

The hearing was wrongly treated as formal proof; the court could not know what directions it would have given had it known a defence existed, so benefit of doubt goes to the applicants

Reasoning

A defence and counterclaim had been filed on 14 April 2014 and remained on record. The hearing of 4 December 2018 was therefore not a true formal proof. No pretrial conference was on record, and the court could not determine what directions it would have issued had it known of the defence. Justice favoured setting aside the judgment so the defence and counterclaim could be ventilated.

p. 2
02

Whether defendants should bear consequences of counsel's non-attendance

Holding

Non-attendance was probable mistake of counsel, not impropriety by the applicants, and should not be visited on them

Reasoning

The reason for counsel's non-attendance was unexplained and the court could not verify the applicants' claim they were not informed. However, nothing suggested impropriety by the applicants themselves. Since a party ought not suffer for counsel's mistake, and a triable defence and counterclaim existed (joint versus sole ownership of the suit property), the applicants deserved to be heard.

p. 2
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Costs of the application

Holding

Each party to bear own costs because respondents' counsel misrepresented that no defence had been filed

Reasoning

Although costs would ordinarily follow the event, the court proceeded to formal proof partly on the submission by the respondents' counsel that no defence had been filed, which was untrue. The court declined to reward that misconduct with costs and instead ordered each party to bear their own costs.

p. 2

Legal principles established

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  • A hearing cannot properly proceed as formal proof where a defence and counterclaim is on record; benefit of doubt should go to a defendant whose non-attendance is likely a mistake of counsel and who raises triable issues

Court orders

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  1. 1.The application dated 17 May 2021 allowed
  2. 2.The ex parte judgment delivered on 31 March 2019 set aside so the matter may be listed for hearing inter partes
  3. 3.Each party to bear his/her own costs of the application
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (interlocutory application in pending suit)

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, "Rukiya Abdulrahman Hatimy & another v Mohideen Abdulrahman Mohamed Hatimy & another [2022] KEELC 1902 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1902/eng@2022-01-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.