https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4954

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELCLC E143 OF 2017** **AHMED FAISAL ALI………………………………. PLAINTIFF/RESPONDENT** **(Suing as legal representative of the Estate of Faisal Ali Ahmed)** **VERSUS** **FAUD ALI ADI……………….…………………….…DEFENDANT/APPLICANT** **RULING** 1. The Defendant, Fuad Ali Adi, through an amended Notice of Motion Application Amended on 29 January 2026, seeks that this Court, do issue an injunction against proceedings with any development on the suit property by the Plaintiff, his agents, employees, assignees, transferees or any person acting under his authority or authority emanating from him pending the hearing and determination pending hearing and determination of this Application. 2. From the outset, this Court notes that the Defendant/Applicant contention and claim is that he is the owner of Plot known as Lamu/Wiyoni/220 while the Plaintiff’s claim is in regard to plot No. Lamu/Block V/4. 3. The Plaintiff also prays that the judgment of this Court entered against him on 19 March 2024 and the orders arising therefrom be set aside and the matter be heard *de novo.* 4. The grounds upon which the Applicant seeks the said orders are that the matter proceeded *ex parte* when the Applicant and or his advocate or record were not notified. 5. The Applicant cites challenges in his representation and avers that his previous advocate on record closed his office and misplaced the Applicant’s file. The Applicant contends that the new advocate on record had a challenge in obtaining the client’s file to properly take conduct of the matter. 6. The Plaintiff/Respondent responded to the Application vide a Replying Affidavit sworn by Ahmed Faisal Ali on 18 February 2026 and filed submissions dated 7th April 2026. 7. In his response, the Respondent avers that the Application is a non-starter, misconceived and an abuse of the court’s process. 8. The Respondent avers that the judgment entered by this Court was a regular judgment because the Applicant was served with the pleadings and various hearing and mention notices as demonstrated by the Affidavits of service on record. 9. The Respondent avers that the Applicant has failed to demonstrate any sufficient or plausible reason for non-attendance nor a draft defence. Further the Respondent states that the Applicant has not tendered and satisfactory reason for failing to take prompt actions in lodging the instant Application 10. In his submissions, through Counsel, the Respondent gives a chronology of events citing the dates and documentation that were served upon the Applicant from when the suit was instituted upto the date of hearing and determination of the suit leading to the judgment herein ***Analysis and determination*** 1. What is before this Court is a prayer for two specific orders: The order that this Court sets aside its judgment and that the Court issues an injunction against the Plaintiff from proceeding with any development on the suit property. 2. This Court will consider the two orders sought on their merits based on the law and the reasons given by the Applicant starting with the application for setting aside. *.* 1. The Applicant seeks that this Court sets aside its judgment entered against him on 19 March 2024. In its judgment, the Court noted that the Defendant failed to file his defence on time and therefore, judgment was entered against him. 2. This is despite the Defendant/Applicant being duly served with all the necessary suit papers on 7th July 2017 as evidence by the return of service by Awadh Salim Hiyesa. In fact, the Applicant entered Appearance through the firm of Kaluki Murui Ndiritu & Co. Advocates 3. Despite entering appearance, the Defendant and his advocate on several instances failed to show up for the various scheduled mentions and pre-trial. 4. In April 2022, the firm of Aboubakar Mwanakitima filed a Notice of Change of advocates taking conduct of the matter from the firm of Kaluki Murui Ndiritu & Co. Advocates. Despite the advocates therein coming on record and a Ms. Bujra even appearing in Court as holding brief for the said firm, they still failed to comply leading to the matter proceedings as undefended. 5. Pursuant to the foregoing, this Court delivered its judgment on 19 March 2024 on the merits of the case presented by the Plaintiff and based on order 10 Rule 10 that provides for Default of defence. 6. The Applicant has moved this Court pursuant to order 10 Rule 11 and now seeks that this Court now exercises its discretion 7. Order 10 rule 11 of the Civil Procedure Rules in relation to setting aside a judgment provides as hereunder: - *“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”* 1. In *Patel v E.A. Handling Services Ltd*, *Tree Shade Motor Ltd v D.T. Dobie Co. Ltd* and *Maina v Muriuki* the courts held that: *the discretion of the Court should be exercised to avoid injustice or hardship resulting from accident, inadvertence, and excusable mistake or error. Further, in Shah v. Mbogo & Another, where the Court, while addressing the subject of discretion, stated that: “The discretion is intended to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought, whether by evasion or otherwise, to obstruct or delay the course of justice."* 1. In Berlin Equipment Ltd & and other v Tata Africa Holdings (K) Limited [2026] KECA 100 (KLR), the Court of Appeal held as follows: *“It is common ground that the jurisdiction under Order 10 rule 11 is discretionary. The rule empowers the court to set aside or vary a default judgment “upon such terms as are just.” The principles guiding the exercise of that discretion are well settled.* *The discretion exists to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, and is not intended to assist a party who has deliberately sought to obstruct or delay the course of justice, as articulated in the celebrated case, Shah v Mbogo (1967) EA 166. Where a default judgment is regular, the court ordinarily considers whether the defendant has shown a defence on the merits. A defence on the merits does not mean one that must succeed; it suffices that it raises a triable issue deserving of adjudication at a trial, as stated by this Court in Patel v E.A. Cargo Handling Services Ltd (1974) EA 75 and reiterated in Tree Shade Motors Ltd v D.T. Dobie & Another (1995– 1998) 1 EA 324.17* 1. Court of Appeal in **CMC Holdings Ltd v. Nzioki:** *“In an application for setting aside ex parte judgment, the Court exercises discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law, a court of law's discretion in deciding whether to set aside an ex parte order was meant to ensure that a litigant does not suffer injustice or hardship due to, amongst others, an excusable mistake or error. It would not be a proper use of such discretion if the Court turned its back to a litigant who demonstrates such an excusable mistake, inadvertence, accident, or error. Such an exercise of discretion would be the wrong principle. In the instant case, the learned trial magistrate did not exercise her discretion properly when she failed to address herself as to whether the appellant's unchallenged allegation that its counsel did not inform it of the hearing date for the hearing that took place ex parte and hence it would appear was true and not if true, the effect of the same on the ex parte judgment was entered as a result of the non-appearance of the appellant and on the entire suit. The answer to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In doing so, she drove the appellant out of the seat of justice empty-handed when it had what might have well amounted to an excusable mistake visited upon the appellant by its advocate...The second disturbing matter that arises from the decision of the learned magistrate in dismissing the Application for setting aside the ex parte judgment is that in so dismissing the same Application, the learned trial magistrate does not appear* ***to have considered whether or not the defense which was already on record was reasonable or raised triable issues. The law is now well settled that in an application for setting aside ex parte judgment, the Court must consider not only the reasons why the defense was not filed or, for that matter, why the Applicant failed to turn up for the hearing on the hearing date but also whether the Applicant has a reasonable defense which is usually referred as whether the defense if filed already or if the draft defense is annexed to the Application, raises triable issues. In such cases, the Court has wide discretion to set aside ex parte judgment.*** *In the instant case, the defense and counterclaim were already in the file when the matter was heard ex parte, and the trial magistrate stated that she considered the same and dismissed the same defense and counterclaim when the appellant was not in Court to put forward its case. Further, certain matters raised in the defense were not considered and could not be considered without the appellant's input. What the Trial Court should have done when hearing the Application to set aside the ex parte judgment was to ignore her judgment on record and look at the matter afresh, considering the pleadings before her and see if, on their face value, a prima facie triable issue (even if only one) was raised by the defense and counterclaim. If the same was raised, whether the reasons for the appellant's appearance were weak, she was legally bound to exercise her discretion and set aside the ex parte judgment to allow the appellant to put forward its defense. Of course, in such a case, the Applicant would be condemned in costs or even ordered to pay thrown-away costs. The learned judge should not have considered what the learned Trial Court had concluded on the evidence before her but should have, in the same way, looked at the pleading and considered whether the defense raised a triable issue. If so, then the appeal should have been allowed." (Emphasis is added)* 1. After this matter was concluded, the Applicant, out of time, sneaked into these proceedings their defence. This Court does not condone the indolent actions of the Defendant Applicant in defending the suit, this Court has to consider the said defence prima facie on whether it raised triable issues on not. 2. Upon perusal of the defence filed out of time, the Applicant contends that the Suit Property was allocated to them on via a letter of allotment of 15 January 1998. The Applicant in his list and bundle of documents has filed the said letter of allotment. 3. It is important to note that the Respondent also in the suit observed in the judgment of this Court, has also supplied the court with a copy of a certificate of title registered in their name. 4. The reasons advanced by the Applicant in the grounds supporting the Application and the affidavit in support thereto together with the submissions that he filed therein are not sufficient enough to warrant tis Court to set aside its judgment. 5. The Applicant at all times, despite the various changes in his representation by counsel and the confusion therein, was well aware of the proceedings in this matter and ought to have acted accordingly to defend the suit. 6. The law on setting aside of ex-parte orders is now well settled. Where a court process was not properly served, the resultant order will be set aside as a matter of right to the aggrieved party. Conversely, where there is evidence of proper service of the court process, the aggrieved party is not entitled to have the resultant orders set aside as a matter of right. However, the court retains the discretion to set aside the resultant orders if it is satisfied that the applicant has a defense on the merits which ought to go to trial (Yooshin Engineering Corporation v Aia Architects Limited (Civil Appeal E074 of 2022) [2023] KECA 872 (KLR) (7 July 2023). 7. Under Article 159(d) of the Constitution fortifies that justice shall be administered without undue regard to technicalities. In Jomo Kenyatta University of Agriculture & Technology v Mussa Ezekiel Oebah [2014] KECA 143 (KLR), the Court of Appeal held as follows: *“In our view, those issues are triable and call for trial. The court should have been reluctant to deny the appellant a hearing. In the circumstances, it is clear that immediately the appellants became aware of the judgment on being served with notice of entry of judgment, it took steps to rectify the position. We consider that the learned judge misdirected herself by attempting to weigh the merits of the defence with insufficient material in a matter befitting trial, with the result that she arrived at a wrong decision disallowing the appellant’s application.”* 1. Having regard to the foregoing and in order not to occasion undue hardship to the Respondent, I exercise my discretion to set aside the ex-parte judgment subject to the Defendant Applicant paying the Plaintiff Respondent throw away costs of Ksh. 30,000.00 within 7 days of this order. 2. The principles for granting an injunction is set out in the celebrated case of Giella – Versus - Cassman Brown & Co. Ltd (1973) EA” as follows: 3. *The Applicant must first establish a prima facie case with a probability of success.* 4. *The Applicant must then demonstrate that he, she or it stands to suffer irreparable loss that cannot be adequately compensated through damages.* 5. *Where there is doubt on the above, then the balance of convenience should tilt in favour of the Applicant.* 6. One has to establish a *prima facie* case with a probability of success and an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. If in doubt, the court will decide the matter on a balance of convenience. 7. The Applicant has submitted that he too, has a letter of allotment to the Suit Property and therefore has a legitimate claim should the Suit herein be heard de novo. 8. Further, there is contradiction as relates to the particulars of the suit property as there seems to be difference in the title number as claimed by both parties. 9. The Court of Appeal in the case of *Mrao Ltd V First American Bank of Kenya & 2 Others*, [2003] KLR 125 considered what constitute a prima facie case and held that: - *“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter”* 1. The Applicant has however failed to demonstrate the irreparable harm that would otherwise not be compensated by the award of damages should this Court not grant the order of injunction sought herein. The Applicant has been indolent is asserting his rights, if any by being lethargic in pursuing his interests in the Suit herein. 2. I find that the Applicant has not specifically pleaded the harm that he stands to face should the Court not grant the injunction sought. The Applicant has merely stated without demonstrating in any manner of form the harm that he is likely to face should the Court not grant the order. 3. Having found that the Applicant has failed to establish that he will suffer irreparable harm that cannot be compensated by the award of damages, this Court finds that there is no need to consider and address that other third condition required. 4. This is guided by the decision in the Court of Appeal case of *Kenya Commercial Finance Co. Ltd v Afraha Education Society* [2001] 1 EA 86, cited with approval by Gitumbi, J. in the case of *Joseph Wambua Mulusya v David Kitu & Another* (2014) eKLR observed as follows: 5. *“The sequence of steps to be followed in the enquiry into whether to grant an interlocutory injunction is sequential so that the second condition can only be addressed if the first one is satisfied”* 6. As analyzed hereinabove, the Applicant has failed to demonstrate that he will suffer irreparable harm should this Court fail to grant the interlocutory orders sought and as such, I decline to make any order regarding the same. 7. Ultimately the application succeeds in part. The ex parte judgment dated …is hereby 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. The order for a temporary injunction is declined. The costs of the application shall be borne by the Applicants **Dated, Signed and Delivered, virtually at Malindi this 30th day of July 2026** **J. M. ONYANGO** **JUDGE** **In the presence of:** 1. **Mr Omwancha for the Plaintiff/Respondent** 2. **Mr. Kiprono for Mr. Aboubakar for the Defendant/Applicant**