The County Government Of Kilifi v Mohamed & 10 others (Land Case 51 of 2014) [2022] KEELC 3633 (KLR)
The bottom line
#A Kenyan court refused to reopen a settled land dispute, ruling that unexplained delay and the presence of other parties defeat claims that proceedings were unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated sufficient cause for setting aside the proceedings and ruling marking the suit as settled
The applicant failed to establish sufficient cause; the application was brought nearly five months after the ruling with no explanation for the delay, and the impugned ruling was not ex parte since counsel for other parties were present at delivery.
The court applied the Shah v Mbogo discretion: setting aside is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist a litigant who deliberately obstructs justice. The applicant offered no explanation for the delay in learning of and responding to the ruling, and the presence of other parties' advocates at the virtual delivery of the ruling defeated the claim that it was ex parte under Order 51 Rule 15.
Whether the application was competent having been brought under Order 51 Rule 15 (setting aside ex parte orders) when the order impugned was not ex parte
The orders of 10th November, 2020 were not ex parte; misjoinder or wrong citation of provisions was excused under Article 159(2)(d) but the substantive claim failed on the merits.
The court held that under the constitutional dispensation, matters should not be defeated for want of form (Article 159(2)(d)), so the wrong provision did not itself doom the application. However, on the merits, the proceedings of 10th November 2020 showed counsel for the Plaintiff and for the 4th to 11th Defendants were present when the ruling was delivered virtually, so the ex parte setting of Order 51 Rule 15 was inapplicable.
Whether a plaint can be struck out after the case has been settled
No; it is not prudent to strike out a plaint in a suit already settled, particularly one year after the ruling settling the matter.
The court reasoned that judicial time should not be wasted in academic exercises and that the suit had effectively been overtaken by the NLC revocation of the defendants' title deeds over the public school land. The applicant, applying one year after the verdict that settled the matter, had shown no reasons warranting the striking out. Section 3A inherent jurisdiction applies only where there is a vacuum, not where specific provisions exist.
Legal principles established
#- The absence of one party does not make proceedings ex parte if the other parties were present
- A party seeking the setting aside of proceedings must demonstrate sufficient cause
- Costs follow the event and are discretionary
Court orders
#- 1.The Notice of Motion application dated 29th April, 2021 is dismissed for being without merit
- 2.Costs to the Respondents
- Jurisdiction invoked
- Sections 1A & 3A of the Civil Procedure Act, Cap. 21 and Order 51 Rule 15 of the Civil Procedure Rules, 2010 (inherent powers of the Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The County Government Of Kilifi v Mohamed & 10 others (Land Case 51 of 2014) [2022] KEELC 3633 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3633/eng@2022-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.