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ELCDismissedCivil Case 190 of 2014· [2022] KEELC 14702 (KLR)

Salim & another v Ali & another

Environment and Land Court of Kenya
3 October 2022
LNL.L. Naikuni
6,238 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to stop a land sale and refused to reopen a 2019 judgment because the defendants showed no property rights and followed the wrong procedures.

What this practically means

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Executive summary

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The 1st Defendant, Feisal Mohammed Ali, moved the Environment and Land Court at Mombasa by Notice of Motion dated May 3, 2021 seeking injunction-type restraints against the Plaintiffs over Plot No. 470/1/MN, setting aside of the judgment delivered on July 12, 2019, and unconditional leave to defend the suit. He claimed he was never served with summons, never instructed the firm of Angelo Owino & Co. Advocates that entered appearance and filed a joint Defence, and only learnt of the case when a court bailiff evicted Omar Saleh Ahmed, the alleged purchaser from the 2nd Defendant, on April 17, 2021. The Plaintiffs opposed, asserting service on and representation of the Defendants, the Defendants' three-year delay, the absence of any complaint against the Advocate on record, and non-compliance with Order 9 Rule 9 by the incoming advocates. The court framed three issues: entitlement to injunctive relief, entitlement to setting aside, and costs. It held the restraint prayer was misplaced, having been brought under Order 40 Rule 3 which presupposes an existing injunction, and that in any event no prima facie case or proprietary interest was shown under the Giella v Cassman Brown sequential tests. On setting aside, the court found the Advocate's entry of appearance, filing of a Defence and prosecution of a Preliminary Objection inconsistent with the claim of no instructions, noted the absence of any complaint to the Advocate or the Advocates Complaint Committee, and applied Shah v Mbogo. It further held Order 9 Rule 9 mandatory and uncomplied with by the incoming firm, and that the overriding objective could not rescue the application. The application was dismissed with costs to the 1st Defendant.

Key legal issues

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01

Whether injunctive/preservation orders could issue

Holding

No - the application was brought under the wrong provision (Order 40 Rule 3, which penalises breach of an existing injunction) and no prima facie case or proprietary interest was shown

Reasoning

Order 40 Rule 3 presupposes an existing injunction that has been breached; none existed. Even treating the application as one for preservation, the Giella v Cassman Brown conditions apply sequentially. The 1st Defendant, as landlord who consented to the sale, demonstrated no proprietary interest, so the first hurdle failed and the rest fell away.

p. 7
02

Whether the judgment of July 12, 2019 should be set aside for lack of service

Holding

No - an Advocate entered appearance, filed a Defence and a Preliminary Objection for both Defendants, and the Defendants never complained against that Advocate; the discretion under Order 12 Rule 7 was not exercised in their favour

Reasoning

Service on an Advocate with instructions to accept service suffices under Order 5. The Advocate's active participation (appearance, Defence, Preliminary Objection dismissed on merit) belied the claim of no instructions. No complaint was lodged with the Advocate or the Advocates Complaint Committee. Setting aside would prejudice the Plaintiffs' enjoyment of the judgment.

p. 9
03

Effect of non-compliance with Order 9 Rule 9 by the incoming advocates

Holding

The incoming firm (Otieno Otwere & Associates) never sought leave or filed consent to come on record after judgment, so their representation of the 1st Defendant was procedurally irregular

Reasoning

Order 9 Rule 9 is mandatory: after judgment, change of advocate or a party acting in person requires a court order on notice or a filed consent. None was obtained. The provision does not impede the right to representation but imposes orderliness; the rationale is to protect advocates from mischievous clients who sack them after judgment.

p. 10
04

Whether the overriding objective could rescue the application

Holding

No - the inherent powers under the Environment and Land Court Act and Article 159(2)(d) cannot be invoked to abuse process and are not a panacea

Reasoning

Sections 3, 13 and 19 of the Environment and Land Court Act and Article 159(2)(d) do not aid the Defendants because a foundation for their application must be properly laid and their benefits judicially ascertained; they cannot be abused at will in the administration of justice.

p. 11

Legal principles established

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  • Change of advocate or a party acting in person after judgment requires an order of the court or a filed consent under Order 9 Rule 9, which is couched in mandatory terms
  • Discretion to set aside judgment is exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice
  • Injunction conditions are sequential; failure of the prima facie case disposes of the application

Court orders

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  1. 1.The Notice of Motion application dated May 3, 2021 be and is hereby dismissed for lack of merit
  2. 2.The costs to be borne by the 1st Defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27(1)
  • Civil Procedure Rules 2010Order 40 Rules 1, 2 & 3; Order 12 Rule 7; Order 5 Rules 1, 7, 8 & 15; Order 9 Rule 9
  • Constitution of KenyaArticle 159(2)(d)
  • Environment and Land Court ActSections 3, 13 & 19

Cases cited (13)

  • Giella –versus- Cassman Brown
    (1973) 364 EA

    Conditions for granting interlocutory injunctions

  • Mrao Limited – Versus - First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125

    Definition of a prima facie case in civil cases

  • Nguruman Limited – versus - Jan Bonde Nielsen & 2 others
    [2014] eKLR

    Injunction conditions are sequential hurdles that must be surmounted in order

  • Kenya Commercial Finance Co. Limited – versus - Afraha Education Society
    [2001] 1 EA 86

    Failure of the first injunction condition disposes of the application

  • Patel – versus - EA Cargo Handling Services Limited
    [1974] EA 75, 76

    Principles governing setting aside of default judgment

  • Shah – versus - Mbogo
    (1969) EA 116; 123

    Discretion to set aside judgment is to avoid injustice, not to assist deliberate obstruction

  • National Bank of Kenya Limited – versus - Ndzao Katana Jonathan
    Nairobi HCCC No. 775 of 2002

    Not in the interest of justice to set aside judgment where the applicant seeks to delay justice

  • Reef Hotel (Management) Co. Limited – versus - Eagle Aviation Limited
    Mombasa HCCC No. 522 of 1998

    Discretion not designed to assist those who deliberately delay the cause of justice

  • Yusuf Kulmel King – versus - The Commissioner of Customs and Excise and The Kenya Revenue Authority
    Nairobi Civil Appeal No. 245 of 1999

    Appellate court will not interfere with a judge's exercise of discretion absent misdirection or injustice

  • Lalji Bhimji Sanghani Builders & Contractors –versus- City Council Of Nairobi
    (2012) eKLR

    Order 9 Rule 9 requirements for change of advocate after judgment

  • Hunker Trading Co. Limited –versus- Elf Oil Kenya Limited
    Civil Appeal No. 6 of 2010

    Order 9 Rule 9 requirements for change of advocate after judgment

  • Monica Moraa –versus- Kenindia Assurance Co. Limited
    [2010] eKLR

    Leave must be sought to come on record after judgment; courts cannot turn a blind eye to flagrant breach of the rules

  • S.K. Tarwadi –versus- Veronica Muehlemann
    [2019] eKLR

    Essence of Order 9 Rule 9 is to protect advocates from mischievous clients who sack them after judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 3 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Salim & another v Ali & another", Case Analysis (2022). Civil Case 190 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14702/eng@2022-10-03

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