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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the present application is competent in view of the provisions of Order 9 Rule 9 of the Civil Procedure Rules
- 2.whether the proceedings culminating in the order made on 29th April 2025 were regularly conducted after due service of the Defendant's application and the hearing notice
- 3.if so, whether the Applicant has established sufficient cause to warrant the exercise of the Court's discretion to set aside that order
- 4.who should bear the costs of the application
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.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Setting aside of the order of 29th April 2025 striking out the Plaintiff's suit and reinstatement of the suit for hearing on the merits
The proceedings were regularly conducted after due service, and the Applicant failed to establish sufficient cause, corroborate the alleged default of his former advocates, or demonstrate diligence; the five-month delay was unexplained.
Costs
The Plaintiff/Applicant shall bear the costs of the Notice of Motion dated 16th September 2025.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The inevitable consequence is that the Notice of Motion dated 16th September 2025 is devoid of merit.
i) The Notice of Motion dated 16th September 2025 is hereby dismissed. ii) The Plaintiff/Applicant shall bear the costs of the Notice of Motion dated 16th September 2025.
The inevitable conclusion is that the proceedings culminating in the impugned order were procedurally regular. It follows that the Applicant is not entitled to have that order set aside as of right.
Litigation is conducted through advocates, but responsibility for safeguarding one's legal interests ultimately remains that of the litigant.
Issues in the judgment
#Internal inconsistency on the court's location: the Applicant depones he resides outside Nairobi and cannot monitor proceedings electronically, yet the matter is before the ELC in Garissa.
Chronological anomaly in dates: the Applicant's written submissions are dated 20th April 2026 but the judgment is dated 16th July 2026; also written submissions supporting a Notice of Motion dated 16th September 2025 are dated over six months later, while the Replying Affidavit of 5th January 2026 predates them - the record as presented is internally consistent but the submission dates post-date the filing of the Replying Affidavit substantially.
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.