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ELCPartially AllowedELC E143 of 2017

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)

Environment and Land Court
30 July 2026
2,970 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi in ELC E143 of 2017, delivered by J. M. Onyango, J on 30 July 2026. The Defendant, Fuad Ali Adi, sought by amended Notice of Motion to set aside the judgment entered against him on 19 March 2024 and for an injunction restraining the Plaintiff, Ahmed Faisal Ali, from developing the suit property pending hearing of the suit de novo. He attributed his non-participation to his former advocate closing his office and misplacing his file. The Respondent opposed, arguing the judgment was regular as the Applicant was served with pleadings and hearing notices and had not shown a draft defence or prompt action. The court applied Order 10 rule 11 and the settled principles in Shah v Mbogo, CMC Holdings v Nzioki and Yooshin Engineering v Aia Architects: where service was proper, setting aside is not a matter of right but remains discretionary where a defence on the merits exists. Finding that the Applicant's out-of-time defence raised a triable issue - he holds a letter of allotment of 15 January 1998 while the Respondent holds a certificate of title, and the plot numbers claimed differ (Lamu/Wiyoni/220 versus Lamu/Block V/4) - the court set aside the ex parte judgment subject to throw-away costs of Kshs. 30,000. The injunction claim failed under Giella v Cassman Brown as the Applicant did not demonstrate irreparable harm not compensable by damages. The application succeeded in part, with costs of the application to the Applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ex parte judgment entered against the Defendant on 19 March 2024 should be set aside and the matter heard de novo
  2. 2.Whether an injunction should issue restraining the Plaintiff from developing the suit property pending hearing and determination of the application

Key legal issues

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01

Whether the ex parte/default judgment should be set aside under Order 10 rule 11

Holding

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

Reasoning

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.

p. 10
02

Whether an interlocutory injunction should issue against the Plaintiff

Holding

Injunction refused as the Applicant failed to establish irreparable harm not compensable in damages

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 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. 2.The order for a temporary injunction is declined
  3. 3.The costs of the application shall be borne by the Applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 10 rule 11 of the Civil Procedure Rules

Relief refused

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Temporary injunction restraining the Plaintiff from developing the suit property

The Applicant failed to demonstrate irreparable harm not compensable by damages

p. 12

Costs

The costs of the application shall be borne by the Applicant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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
p. 13Final orders/disposition
Where a court process was not properly served, the resultant order will be set aside as a matter of right to the aggrieved party.
p. 9Setting aside ex parte orders - service
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
p. 11Prima facie case - Mrao Ltd
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.
p. 12Irreparable harm

Issues in the judgment

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minor

The date of judgment is internally inconsistent: the court set aside a judgment 'entered against him on 19 March 2024' yet the ruling is dated 30 July 2026 and the application was amended on 29 January 2026, a chronology that is internally plausible but the case number is 'of 2017' and the Court of Appeal decision relied on is dated [2026] KECA 100, i.e. decided in the same year as the application.

minor

Costs order misstates the party: the closing orders say costs 'shall be borne by the Applicants' although the Applicant is a single Defendant.

minor

Order 31 records the throw-away costs as payable 'within 7 days of this order' but the final order requires payment 'before the case is set down for hearing'.

minor

The date of the ex parte judgment is left blank in the final orders ('dated …is hereby set aside').

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.