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ELCPartially AllowedEnvironment & Land Case 130 of 2020· [2023] KEELC 22024 (KLR)

Kilifi Hotels Limited v Ibrahim & another

Environment and Land Court
5 December 2023
LNL.L. Naikuni
7,184 words in judgment
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The bottom line

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A Kenyan land court gave a hotel dispute defendant a second chance to be heard, but made him pay Kshs. 50,000 for the delay he caused.

What this practically means

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Executive summary

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The 1st Defendant, Omar Guma Ibrahim, moved the Environment and Land Court at Mombasa by Notice of Motion dated 1st December 2022 seeking review, setting aside, discharge or variation of the orders of 2nd November 2022 by which Naikuni J closed the Defendants' case and scheduled the suit for judgment on 14th March 2023, and leave to avail his witnesses. The application was brought under Section 80 of the Civil Procedure Act, Order 45 Rules 1 and 2, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 13(7) of the Environment and Land Court Act and Article 159(2) of the Constitution. The Applicant argued that his absence and that of his advocates on 2nd November 2022 was not deliberate, that any negligence was his advocates', and that proceeding to judgment unheard would violate Articles 48 and 50. The Plaintiff, Kilifi Hotels Limited, opposed, contending the application was an abuse of process, that the Defendant had absconded repeatedly after proper service, and that judicial time should not be squandered. The court framed two issues: whether a case for review/setting aside was made out, and costs. It found the Applicant had been properly served, had failed to attend on multiple dates, filed the application after about three months' delay, and had satisfied none of the Order 45 requirements. Nevertheless, invoking the overriding objective, natural justice, fair hearing and Shah v Mbogo, the court conditionally set aside the ex parte proceedings and allowed the Defendants to be heard, subject to thrown away costs of Kshs. 50,000 payable within 30 days, failing which judgment date would be fixed. The defence hearing was set for 4th June 2024 and a mention for 4th March 2024. The Plaintiff was awarded the costs of the application.

Key legal issues

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01

Whether the 1st Defendant made out a case for review/setting aside of the orders of 2nd November 2022 closing the defence case

Holding

Strictly, the Applicant satisfied none of the review requirements under Section 80 and Order 45, but the court conditionally allowed the application on fair-hearing grounds, setting aside the ex parte proceedings

Reasoning

The court found the Applicant was properly served and had absented himself repeatedly, with no affidavit from his advocate explaining non-attendance and an inordinate delay of about three months in filing. None of the Order 45 grounds (new evidence, error apparent, sufficient reason) was made out. However, invoking the overriding objective, natural justice and Articles 25(c), 50 and 159 of the Constitution, and relying on Shah v Mbogo, the court chose not to drive the Defendants from the seat of justice and conditionally reopened the defence case.

p. 12
02

Who bears the costs of the application

Holding

The Plaintiff is awarded the costs of the application, and the 1st Defendant is condemned to pay thrown away costs of Kshs. 50,000 within 30 days

Reasoning

Although the 1st Defendant succeeded, the court held that costs follow the event under Section 27(1) of the Civil Procedure Act and, balancing the scales, ordered the Applicant to pay the Plaintiff reasonable thrown away costs within a stringent timeframe, given the anguish, mental, financial and emotional distress caused by the Applicant's conduct.

p. 13

Legal principles established

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  • Section 80 of the Civil Procedure Act confers the power of review while Order 45 sets out the rules and restricts the grounds for review
  • Review is not an appeal; it is confined to error apparent on the face of the record
  • The court's discretion to set aside ex parte proceedings is wide but must be exercised judiciously, not capriciously
  • Costs follow the event under Section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.The Notice of Motion application dated 1st December, 2022 be and is hereby found to have merit and hence it is allowed in its entirety
  2. 2.The 1st Defendant condemned to pay the Plaintiff thrown away costs of Kshs. 50,000.00 within thirty (30) days from the date of delivery of the Ruling; in default, the Court proceeds to fix a date for delivery of Judgment
  3. 3.Defence hearing fixed for 4th June, 2024 for examination in chief, cross-examination and re-examination of the witnesses to be summoned by the 1st and 2nd Defendants and upon closure the filing of written submissions
  4. 4.Matter to be mentioned on 4th March, 2024 for compliance and further directions
  5. 5.The Plaintiff/Respondent shall have the costs of this application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 25(c), 48, 50(1) and (2), 159(1) and (2)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A, 27(1), 80
  • Civil Procedure Rules, 2010Order 45 Rules 1 and 2; Order 12 rule 1; Order 17 rules 1, 2 and 3
  • Environment and Land Court Act, No. 19 of 2011Sections 3, 4, 13 and 13(7)
  • Land Registration Act, No. 3 of 2012Section 101
  • Land Act, No. 6 of 2012Section 150
  • Registration of Titles Act, Cap 281Section 57

Cases cited (25)

  • Belinda Muras & 6 others v Amos Wainaina
    [1978] KLR

    Mistakes of counsel should not be visited on the litigant; court should rectify mistakes in the interest of justice

  • Phillip Chemwolo & Another v Augustine Kubede
    [1982-88] KLR 103

    A party should not suffer the penalty of not having his case heard on merit because a mistake was made

  • Esther Wamaitha Njihia & 2 Others v Safaricom Ltd

    Setting aside ex parte judgment is a matter of the court's discretion

  • Shah v Mbogo
    (1968) EA 93

    Discretion to set aside ex parte judgment to be exercised to avoid injustice from accident, inadvertence or excusable mistake

  • Ongoma v Owota

    Conditions for setting aside ex parte proceedings - proper service or sufficient cause

  • Lochab Brothers Ltd

    Substantive justice under the overriding objective provisions

  • Ridge v Baldwin
    [1964] AC 40

    Right to fair hearing as a rule of universal application in administrative decisions

  • Gladys Njeri Kirugumi v Langata Development Co. Limited & Another
    [2016] eKLR

    Route of lesser risk of injustice in balancing competing prejudices

  • Films Rover International Limited v Cannon Film Sales Limited
    [1986] 3 All E.R. 772

    Balance of justice considerations

  • E M M & Another v Joseph Njuguna Kuria & Another
    [2016] eKLR

    Defendants have a positive duty to prove their allegations; denial is not enough

  • Japheth Pasi Kilonga & 8 others v Mombasa Autocare Ltd
    [2015] eKLR

    Balancing expeditious disposal of suits against locking out a litigant from trial

  • Mbogo & Another v Shah
    (1968) EA 93 at 96

    Appellate court will not interfere with discretion exercised wrongly or on wrong principles

  • Patel v E.A. Carge Handling Services Ltd
    [1974] EA 75

    No limits or restrictions on the judge's discretion to set aside or vary an ex-parte judgment except on just terms

  • James Wanyoike & 2 others v C M C Motors Group Limited & 4 others
    [2015] eKLR

    Court's main concern is to do justice to the parties without fettering its wide discretion

  • John Peter Kiria & Another v Pauline Kagwiria
    [2013] eKLR

    No party should be condemned unheard where there is a defence on merits, no prejudice and explanation for delay

  • Gitamaiyu Trading Company Ltd v Nyakinyua Mugumo Kiambaa Co. Limited & 11 others
    Civil Appeal No. 84 of 2013

    Land is the most important factor of production and an emotive source of conflict in Kenya

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR

    Section 80 gives the power of review; Order 45 restricts the grounds and scope of review

  • Sese (Suing as the Administrator of the Estate of the Late Shali Sese) v Karezi & 8 others
    (Environment and Land Constitutional Petition 32 of 2020) [2023] KEELC 17427 (KLR)

    Review is not an appeal; confined to error apparent on the face of the record

  • Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others

    A party should have his day in court only when there is something to hear; judicial time managed on a need basis

  • Ashmore v Corp Of Lloyds
    [1992] 2 ALL E.R 486

    Trial judge controls proceedings; litigants entitled only to so much judicial time as necessary

  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 Others
    [2022] eKLR case E246 of 2021

    Abuse of court process is an obstacle to the efficient administration of justice

  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] eKLR civil appeal 217 of 2015

    Definition of frivolous and vexatious pleadings; unnecessary anxiety, trouble or expenses

  • Trust Bank Limited v Amin Company Ltd & Another
    (2000) KLR 164

    Pleadings that embarrass or delay fair trial

  • Jasbir Rai Singh v Tarchalan Singh
    eKLR (2014)

    Costs follow the event; costs compensate the successful party

  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    eKLR (2014)

    Basic rule on attribution of costs is that costs follow the events

Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Cap 21; Order 45 Rules 1 and 2 of the Civil Procedure Rules, 2010; Section 13(7) of the Environment and Land Court Act, No. 19 of 2011; Article 159(2) 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, "Kilifi Hotels Limited v Ibrahim & another", Case Analysis (2023). Environment & Land Case 130 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22024/eng@2023-12-05

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