Swaleh v Swaleh & another (Environment and Land Case Civil Suit 99 of 2016) [2022] KEELC 3802 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a two-year-old land judgment because the defendants' lawyer never told them about the hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants were condemned unheard
Yes - their advocate failed to inform them of the hearing date and closed the defence case without authority, amounting to negligence by counsel
The defendants had instructed Katsoleh & Co Advocates, filed a defence, counterclaim and documents, but were never informed of the hearing. Counsel who alleged loss of communication with the clients should have sought to cease acting rather than close the defence case without authority. That conduct left the defendants condemned unheard and justified setting aside so they could be heard on merit.
Whether the application was filed after inordinate delay
No - delay of approximately 2 years 5 months was excusable in the circumstances, since the applicants only learned of the judgment when police visited the suit property
Judgment was delivered on June 26, 2019 and the application filed on November 2, 2021. Applying Utalii Transport, inordinate delay is contextual and depends on the explanation given, subject matter and prejudice. The applicants explained they only became aware of the judgment on October 16, 2021 when police officers visited the suit property with an order of vacant possession. The explanation was held sound.
Whether an advocate may swear a replying affidavit on facts within the client's knowledge
Argued by the parties but not expressly decided; court relied on the plaintiff's counsel's affidavit based on proceedings and the law
The applicants, citing Stephen Bernard Oduor v Afro Freight Forwarders, contended an advocate should not swear affidavits on disputed facts within the client's knowledge. The respondent, citing Sireret Farmers, maintained the affidavit properly dealt with the proceedings and the law. The court did not make an express finding on this issue, deciding instead on the merits of setting aside.
Legal principles established
#- The discretion to set aside ex parte judgment must be exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake
- In setting aside applications the court considers both the reasons for non-attendance and whether there is a reasonable defence raising triable issues
- Counsel who has lost contact with a client must file an application to cease acting rather than close the case without authority
- Inordinate delay is measured contextually, not by the dictionary meaning of 'inordinate'
Court orders
#- 1.Judgment, decree and all consequential orders issued in the suit set aside and the suit to proceed to be heard and determined on merit
- 2.Thrown away costs of Kshs 20,000/= to be paid to the plaintiff within the next 30 days
- 3.Defendants to fix the case for defence hearing within 30 days, failing which the order lapses
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules (discretion to set aside judgment entered in default)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swaleh v Swaleh & another (Environment and Land Case Civil Suit 99 of 2016) [2022] KEELC 3802 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3802/eng@2022-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.