Kalil & 3 others v Hassan (Environment and Land Appeal E001 of 2025) [2025] KEELC 5807 (KLR)
The bottom line
#A Kenyan court set aside orders obtained without a landowner's knowledge, confirming that serving your old lawyer after trial does not count as proper notice.
What this practically means
#Executive summary
#Key legal issues
#Whether service on the Applicant's former advocates (Paul Mugwe & Co. Advocates) was effective service of the application dated 20th January 2025
Service was ineffective because the lower court proceedings had concluded, the instructions to the firm were spent, and the application for stay and extension of time was a new matter; the Applicant was therefore entitled to be heard
Relying on Order 9 Rule 9 and the Tobias M. Wafubwa principle, the court held that an appeal is fresh proceedings in which a party may instruct new counsel without a notice of change. Since the trial was concluded and there was no evidence the former advocates notified the Applicant or filed a notice of appointment, it was probable she had no knowledge of the application, justifying setting aside the ex parte orders.
Whether the ex parte orders of 25th February 2025 should be set aside under Order 12 Rule 7 and Order 51 Rule 15
Yes - the court exercised its discretion to set aside the orders so the Applicant could respond
Order 12 Rule 7 permits setting aside of judgment or order on such terms as are just, and Order 51 Rule 15 permits setting aside where the applicant was not properly served or failed to appear for sufficient cause. Finding service improper, the court set aside the orders and directed the underlying application to be heard afresh.
Legal principles established
#- Where instructions to a firm of advocates ended with the conclusion of the trial in the lower court, service of a post-judgment application on that firm does not constitute proper service, since an appeal is new proceedings, not a continuation
- The court's discretion to set aside ex parte orders exists to avoid injustice and to ensure a party is heard
Court orders
#- 1.Set aside the orders granted in favour of the Appellants/Respondents on 25th February 2025
- 2.Direct that the application dated 20th January 2025 be heard afresh
- 3.Grant the Respondent leave to file a response to the application dated 20th January 2025 within 30 days from the date of the Ruling
- 4.Mention on 24th September 2025 for further directions on disposal
- On appeal from
- Magistrate's Court
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 and Order 51 Rules 1 and 3 and Order 43 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalil & 3 others v Hassan (Environment and Land Appeal E001 of 2025) [2025] KEELC 5807 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5807/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.