Kibene & 6 others v Kabiru & another (Environment & Land Case E002 of 2021) [2025] KEELC 1426 (KLR)
The bottom line
#A Kenyan court set aside a land case decided without the defendant present, because he never got notice of the hearing through no fault of his own.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Defendant's non-attendance at the hearing of 29th April 2024 was reasonably explained so as to justify setting aside the ex parte proceedings and granting leave to file a defence out of time
Yes. The court found on the record that the Defendants were not notified of the hearing date because their Advocate, who had said on 5th July 2023 that he ceased to have instructions, delayed filing the application to cease acting until 7th June 2024, so the Plaintiffs could not serve the Defendants directly. The draft defence raised triable issues and no prejudice beyond delay would befall the Plaintiffs.
The court reviewed the record and found the Advocate's firm rarely attended mentions, announced on 5th July 2023 that it had ceased to have instructions, yet only filed the application to cease acting on 7th June 2024. Had it been processed, the Plaintiffs would have served the Defendants directly. The court entertained a reasonable doubt that the Defendants were notified, found they were not, held that a party should not be punished for counsel's mistakes, found triable issues in the draft defence, and found no prejudice to the Plaintiffs beyond delay.
Legal principles established
#- A party ought not to be punished for the mistakes and/or omissions of his Counsel.
- A defendant who has not been notified of a hearing date cannot attend court; setting aside ex parte proceedings where no prejudice is caused to the plaintiff serves the ends of justice.
Court orders
#- 1.Set aside the proceedings of 29th April 2024
- 2.Direct that the hearing shall start de novo
- 3.Grant the 2nd Defendant leave to file and serve his defence and Counterclaim within 15 days from the date of the Ruling
- 4.Award the Plaintiffs thrown away costs of Kshs 10,000/- for the application, payable within 30 days from the date of the Ruling
- Jurisdiction invoked
- Inherent discretion of the Environment and Land Court over a suit before it (suit properties dispute; application to set aside ex parte proceedings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibene & 6 others v Kabiru & another (Environment & Land Case E002 of 2021) [2025] KEELC 1426 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1426/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.