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ELCAllowedNot stated in judgment· [2025] KEELC 1426 (KLR)

Kibene & 6 others v Kabiru & another (Environment & Land Case E002 of 2021) [2025] KEELC 1426 (KLR)

Environment and Land Court
20 March 2025
1,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kerugoya (J. M. Mutungi, ELC Judge) determined the 2nd Defendant's Notice of Motion dated 8th July 2024 seeking to set aside the ex parte proceedings of 29th April 2024 and for leave to file his defence out of time. The suit, a dispute over suit properties filed in January 2021, was heard ex parte on 29th April 2024 in the absence of both Defendants and their Advocate, whose firm (Gitonga Muthee & Co. Advocates) had been served with the hearing notice. The Applicant explained that his Advocate never informed him of the hearing date and that he had a valid defence. The Plaintiffs opposed, asserting proper service on the Advocate as agent and warning of prejudice from a de novo hearing. The court reviewed the record and found that although the Advocate had announced on 5th July 2023 that he had ceased to have instructions, he did not file the application to cease acting until 7th June 2024; consequently the Plaintiffs never served the Defendants directly. The court found the Defendants were not notified of the hearing date, held that a party should not be punished for counsel's mistakes, noted the draft defence and Counterclaim raised triable issues, and found no prejudice to the Plaintiffs beyond delay. The court allowed the application, set aside the proceedings of 29th April 2024, directed a hearing de novo, granted the 2nd Defendant 15 days to file and serve his defence and Counterclaim, and awarded the Plaintiffs thrown away costs of Kshs 10,000/- payable within 30 days. Two authorities cited by the Plaintiffs were noted but not adopted.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Set aside the proceedings of 29th April 2024
  2. 2.Direct that the hearing shall start de novo
  3. 3.Grant the 2nd Defendant leave to file and serve his defence and Counterclaim within 15 days from the date of the Ruling
  4. 4.Award the Plaintiffs thrown away costs of Kshs 10,000/- for the application, payable within 30 days from the date of the Ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Neeta Gohil –vs- Fidelity Commercial Bank Ltd
    (2019) eKLR
  • Habo Agencies Ltd –vs- Wilfred Odhiambo Musingo
    (2015) eKLR
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

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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, "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.