Hassan v Mandera County Government (Environment and Land Case E013 of 2024) [2026] KEELC 4784 (KLR)
The bottom line
#A Garissa court refused to revive a land suit struck out after a missed hearing, ruling the litigant blamed his advocate without proof or diligence.
What this practically means
#Executive summary
#Key legal issues
#Regularity of service and the evidential burden to impeach affidavits of service
Service upon the Plaintiff's advocates was duly effected and unimpeached; the proceedings culminating in the striking-out order were therefore regular.
The striking-out application was personally served on the advocates and receipt was acknowledged by their official stamp; the hearing notice was served by email. The Applicant did not challenge the stamp, the email address, seek leave to cross-examine the process server, or adduce material impeaching the affidavits of service, so the evidential burden was not discharged.
Whether the Applicant established sufficient cause to set aside a regularly obtained ex parte order
No sufficient cause was established; the application failed.
The Applicant attributed his default to his former advocates but filed no affidavit from them and no corroborative correspondence or records. He exercised no reasonable diligence, did not explain the roughly five-month delay in filing the application, and did not identify in broad terms the defence he was prevented from raising. Articles 48, 50 and 159 inform but do not displace the requirement of sufficient cause.
Competence of the application under Order 9 Rule 9 following change of advocates
The Court declined to decide the objection as academic once the application failed on its merits.
The Respondent argued the Applicant changed advocates after the order without leave or a consent. The Court noted considerable authority that compliance with Order 9 Rule 9 is mandatory where there is a change of advocates after judgment, but held that determining the point after dismissing the application on substance would be a mere academic exercise.
Legal principles established
#- A duly sworn affidavit of service is prima facie evidence of the facts stated therein and a party disputing service must discharge the evidential burden, ordinarily by cross-examining the process server.
- Where an ex parte order is shown to have been regularly obtained, the applicant is not entitled to relief as of right but must demonstrate sufficient cause for the failure to participate.
- The principle that mistakes of counsel should not be visited on an innocent litigant is not automatic; the litigant must establish the mistake by credible evidence and demonstrate his own reasonable diligence.
- Article 159(2)(d) does not excuse indolence or relieve litigants from the obligation to respond to court process.
Court orders
#- 1.The Notice of Motion dated 16th September 2025 is hereby dismissed.
- 2.The Plaintiff/Applicant shall bear the costs of the Notice of Motion dated 16th September 2025.
- Jurisdiction invoked
- Inherent and discretionary jurisdiction to set aside ex parte orders, invoking Articles 48, 50 and 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan v Mandera County Government (Environment and Land Case E013 of 2024) [2026] KEELC 4784 (KLR)", Case Analysis (2026). ELC CASE NO. E013/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4784/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.