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ELCDismissedNot stated in the judgment· [2025] KEELC 1324 (KLR)

Abdalla v Hassan & 15 others (Civil Suit 210 of 2021) [2025] KEELC 1324 (KLR)

Environment and Land Court
14 March 2025
LNL. L. Naikuni
3,243 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to let late-moving defendants rejoin a land case, ruling four years of unexplained inaction forfeits your chance to be heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (L. L. Naikuni, J) determined a Notice of Motion dated 1st November 2024 by the 1st, 5th, 6th and 7th Defendants seeking to set aside the proceedings and all consequential orders, and to be allowed to file a Statement of Defence. The Applicants claimed that the 16th Defendant, Nargis Akasha Abdalla, had purportedly instructed two law firms (Prime Lawyers LLP and later Balala & Abed Advocates) on their behalf, but no defence was ever filed or communicated to them, and the suit proceeded ex parte in violation of their right to be heard. The 16th Defendant and the other co-defendants responded that the Applicants had authorised her by written authorities dated 18th July 2024 to appear, plead and act for them; a defence dated 18th September 2024 had been filed on their behalf; and most of the Applicants were present, physically or virtually, when the suit was heard on 25th September 2024 without objection. The Plaintiff likewise opposed, relying on Order 1 Rule 3 and Order 31 Rule 1 of the Civil Procedure Rules. The court framed two issues: whether the application was merited, and costs. It found no memorandum of appearance or defence by the Applicants on the record, but held that they had participated in the proceedings, had not explained a four-year delay, and that equity does not aid the indolent. Setting aside the proceedings would reopen the case and perpetuate delay. The application was dismissed with costs, the Applicants to pay them, and judgment was scheduled for 30th May 2025.

Key legal issues

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01

Whether the proceedings should be set aside and the Applicants allowed to file a Statement of Defence

Holding

The application was not merited; the Applicants had participated in the proceedings, had authorised the 16th Defendant to act for them, a defence was on record, and they failed to explain the delay in filing their own defence.

Reasoning

The court noted the suit was instituted in 2021 and that the Applicants had not filed a memorandum of appearance or defence as required under Orders 5 and 7 of the Civil Procedure Rules. The hearing proceeded in their presence on 25th September 2024 with the 16th Defendant testifying on their behalf under written authorities. The court invoked the maxim that equity does not aid the indolent, and held that allowing the defence at that stage would reopen the case, contrary to the doctrine that litigation must come to an end.

p. 6
02

Costs of the application

Holding

Costs follow the event and were awarded to the respondents against the Applicants.

Reasoning

The court applied Section 27(1) of the Civil Procedure Act, holding that costs are discretionary and follow the outcome of the legal action. Since the application was dismissed, the Applicants were to bear the costs of the application.

p. 6

Legal principles established

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  • A party must be vigilant about the progress of their own suit and indolence will not be rewarded by the court
  • 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 November, 2024 be and is hereby dismissed with costs
  2. 2.The Judgment date remains as scheduled by the Court on 30th May, 2025
  3. 3.The 1st, 5th, 6th and 7th Defendants shall pay the costs of this application
Jurisdiction invoked
Civil Procedure Act, Cap. 21, Sections 3A and 63(e) and Order 51 Rule 1 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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Cite this brief

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Cite this brief

Caselaw, "Abdalla v Hassan & 15 others (Civil Suit 210 of 2021) [2025] KEELC 1324 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1324/eng@2025-03-14

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