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ELCAllowedConstitutional Petition No 47 of 2021· [2024] KEELC 4065 (KLR)

Godoomal & another v National Environment Management Authority (NEMA) & 3 others (Constitutional Petition 47 of 2021) [2024] KEELC 4065 (KLR)

Environment and Land Court
25 April 2024
6,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a Kshs. 10 million judgment against Mombasa County, prioritizing the right to be heard—though the County paid Kshs. 250,000 in throw-away costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined a Notice of Motion dated 5th October, 2023 brought by the County Government of Mombasa, the 2nd Respondent, seeking leave for Soni & Associates Advocates LLP to come on record, a stay of execution and setting aside of the judgment delivered on 26th July, 2023, leave to defend the petition, and enlarged time to file a Response. The applicant blamed its then advocates, who had entered appearance but inadvertently failed to file a Response, for a judgment awarding the Petitioners Kshs. 10,000,000/- jointly and severally. The 2nd Petitioner opposed, asserting a Response was filed, the applicant participated including in a site visit, and no mistake by counsel was established. The court framed four issues and held that Order 9 Rule 9 permits change of advocate after judgment upon court order or consent, and that given the split of the original firm and consent of Muthee Kihiko & Co. Advocates, the incoming firm could come on record. Applying Shah v Mbogo, Patel v East Africa Cargo Handling Services and Order 12 Rule 7 and Order 10 Rule 11, the court held that despite proper service and a three-month delay, the constitutional right to be heard made it in the interests of justice to set aside the judgment and reopen the case, conditioned on throw away costs of Kshs. 250,000/- payable within 7 days and an automatic lapse of the setting-aside upon default. The application was allowed in its entirety, with costs of the application awarded to the applicant, and the matter set down for hearing with a pre-trial mention on 29th July, 2024.

Key legal issues

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01

Whether Soni & Associates Advocates LLP could come on record for the 2nd Respondent after judgment

Holding

Leave granted; the applicant made out a case given the split of the original firm and the consent of Muthee Kihiko & Co. Advocates

Reasoning

Order 9 Rule 9 mandates a court order or consent for change of advocate after judgment. The court found the prior firm split into two, the matter was retained by Muthee Kihiko & Associates, and with that firm's consent the incoming firm could come on record. The rule protects advocates and imposes orderliness but does not bar representation of choice.

p. 8
02

Whether the judgment of 26th July 2023 and the decree should be set aside and execution stayed

Holding

Yes; the judgment and consequential decree were set aside and the case re-opened upon throw away costs

Reasoning

Although the applicant was properly served and the application came three months after the ex parte judgment, the court took cognizance of the constitutional right to be heard and found it in the interests of justice that the parties be heard fully on merit. The discretion under Order 12 Rule 7 and Order 10 Rule 11 was exercised to further justice, subject to throw away costs and a lapse clause on default.

p. 10
03

Whether the 2nd Respondent should be granted leave to defend and enlarged time to file a Response

Holding

Yes; leave to defend granted and time enlarged under Order 50 Rules 6 and 7

Reasoning

Having set aside the judgment, the court saw no reason to refuse the consequential prayers. Leave to defend was granted and time enlarged to file the Response to the Petition and supporting documents, with corresponding leave of 14 days granted to the Petitioners to respond.

p. 11
04

Who should bear the costs of the application

Holding

The 2nd Respondent/Applicant was awarded the costs of the application

Reasoning

Under Section 27 of the Civil Procedure Act costs follow the event unless the court for good reason orders otherwise. Having convinced the court of the merits of its application, the 2nd Respondent/Applicant was entitled to costs, though it was also ordered to pay throw away costs of Kshs. 250,000/- to the Petitioners.

p. 12

Legal principles established

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  • Order 9 Rule 9 does not impede the right of a party to be represented by an advocate of choice; it only prescribes procedure for change of counsel after judgment
  • The discretion to set aside ex parte proceedings must be exercised judiciously to avoid injustice, not to assist a party who deliberately obstructed justice
  • A defence on the merits means a triable issue, not a defence that must succeed
  • Costs follow the event but remain at the discretion of the court dependent on the circumstances of each case

Court orders

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  1. 1.The Notice of Motion application dated 5th October, 2023 allowed in its entirety
  2. 2.The Judgment delivered on 26th July, 2023 in favor of the Petitioners against the 2nd Respondent/Applicant together with any consequential Decree and Orders set aside
  3. 3.The 2nd Respondent/Applicant to pay the Petitioners throw away costs of Kenya Shillings Two Hundred and Fifty Thousand (Kshs. 250,000/-) jointly within 7 days of the ruling
  4. 4.Leave granted to the 2nd Respondent/Applicant to defend the suit
  5. 5.14 days granted to the 2nd Respondent/Applicant to file their Response to the Petition and any other supporting documents
  6. 6.The 2nd Respondent/Applicant's case re-opened and allowed to call witnesses to testify and adduce evidence
  7. 7.In default of compliance, the order vacating the Ex Parte Judgment and the decree entered shall automatically lapse without further reference to the Court
  8. 8.Matter set down for hearing on 25th September, 2024, to be finalized within 90 days thereafter, with a case management Pre-Trial conference mention on 29th July, 2024
  9. 9.Petitioners granted corresponding leave of 14 days to respond to the pleadings of the 2nd Respondent
  10. 10.Costs of the Notice of Motion awarded to the 2nd Respondent/Applicant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9; Order 9 Rule 10; Order 12 Rule 7; Order 51 Rule 1; Order 7 Rule 1; Order 7 Rule 5; Order 11 Rule 2; Order 11 Rule 3; Order 10 Rule 11; Order 50 Rules 6 and 7; Order 11
  • Civil Procedure Act, Cap. 21Section 3A; Section 27(1); Section 1(a), 1(b)
  • Constitution of Kenya, 2010Article 50; Article 50(2)(b); Article 159(2)(a),(d),(e)

Cases cited (11)

  • Rupa Savings & Credit Cooperative Society – Versus - Violet Shidogo
    [2022] eKLR
  • Shah – Versus - Mbogo and Another
    [1967] EA 116
  • Patel – Versus - East Africa Cargo Handling Services Limited
    (1974) EA 75
  • PMM – Versus - JNW
    (2020) eKLR
  • SK Tarwadi – Versus - Veronica Muehlmann
    [2019] eKLR
  • Ernest Kevin Luchidio – Versus - Attorney General & 2 others
    [2015] eKLR
  • Paul Kiplangat Keter – Versus John Koech
    [2021] eKLR
  • Stephen Mwangi Kimote – Versus - Murata Sacco Society
    [2018] eKLR
  • Parimal – Versus Veena Bharti
    (2011)
  • Sebei District Administration – Versus - Gasyali & others
    (1968) EA 300
  • Morgan Air Cargo Limited – Versus - Everest Enterprises Limited
    [2014] eKLR
Jurisdiction invoked
Order 9 Rule 9(a) & 10, Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules 2010 & Section 3A of the Civil Procedure Act, Cap. 21

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, "Godoomal & another v National Environment Management Authority (NEMA) & 3 others (Constitutional Petition 47 of 2021) [2024] KEELC 4065 (KLR)", Case Analysis (2024). Constitutional Petition No 47 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4065/eng@2024-04-25

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