Ali (Suing as Legal Representative of the Estate of Faisal Ali Ahmed) v Adi (Environment and Land Case E143 of 2017) [2026] KEELC 4954 (KLR)
The bottom line
#A Malindi court gave a landowner a second chance to defend his property at trial, but refused to stop his rival from developing the land in the meantime.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte/default judgment should be set aside under Order 10 rule 11
Judgment set aside on terms, with throw-away costs of Kshs. 30,000, despite the Applicant's indolence, so that triable issues on the competing title documents are determined at a trial
Although the Applicant was duly served and was indolent, the court considered the out-of-time defence and found prima facie triable issues: the Applicant relies on a letter of allotment of 15 January 1998 while the Respondent holds a certificate of title, and there is a discrepancy in the plot numbers claimed. Guided by CMC Holdings v Nzioki and JKUAT v Mussa Ezekiel, and Article 159(d), the discretion was exercised to avoid injustice, subject to throw-away costs.
Whether an interlocutory injunction should issue against the Plaintiff
Injunction refused as the Applicant failed to establish irreparable harm not compensable in damages
Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the Applicant's letter of allotment raised a prima facie claim, but he did not specifically plead or demonstrate the irreparable harm he would suffer absent the injunction. Since the second Giella condition failed, the court did not consider balance of convenience.
Legal principles established
#- Where there is evidence of proper service, a party is not entitled as of right to setting aside of resultant orders, but the court retains discretion to set aside where there is a defence on the merits
- The sequence of the Giella conditions for interlocutory injunction is sequential; the second condition arises only if the first is satisfied
Court orders
#- 1.The ex parte judgment dated 19 March 2024 is set aside subject to the Defendant Applicant paying the Plaintiff Respondent throw away costs of Kshs. 30,000.00 before the case is set down for hearing
- 2.The order for a temporary injunction is declined
- 3.The costs of the application shall be borne by the Applicant
- Jurisdiction invoked
- Order 10 rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali (Suing as Legal Representative of the Estate of Faisal Ali Ahmed) v Adi (Environment and Land Case E143 of 2017) [2026] KEELC 4954 (KLR)", Case Analysis (2026). ELC E143 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4954/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.