Lazarus Kibui Ndegwa v Labule Okello Lutwa [2015] KEELC 755 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the directions of 23rd September 2014 should be set aside on account of counsel's late attendance due to traffic
Yes - the explanation was held reasonable, no prejudice to the Respondent beyond delay, and the suit should be determined on merits
Applying Shah v Mbogo, the court found the discretion serves justice, not discipline. Counsel's lateness was attributed to traffic and she was otherwise punctual. Citing Chemwolo v Kubede, the court held blunders should not cost a party a merits hearing absent fraud; the Respondent could respond to any further affidavit. Costs compensated the Respondent for appearances occasioned by the application.
Costs of the application
Costs awarded to the Respondent, fixed at Kshs.15,000/-, because the Applicant's default occasioned multiple appearances
The court reasoned that although the application succeeded, the Applicant caused the turn of events putting the Respondent to expense across several court dates, and equity in Chemwolo favours putting a default right by payment of costs.
Legal principles established
#- The discretion to set aside an ex parte order exists to avoid injustice from mistake or inadvertence, not to reward deliberate delay
- Mistakes of counsel should not ordinarily penalise a party where there is no fraud or intent to overreach
Court orders
#- 1.Application dated 13th October 2014 allowed
- 2.Directions issued on 23rd September 2014 set aside
- 3.Leave of 14 days granted to the Plaintiff/Applicant to file a further affidavit in response to the Respondent's affidavit dated 27th June 2013
- 4.Matter to be fixed for mention for directions on 14th May 2015
- 5.Costs of the application assessed at Kshs.15,000/- awarded to the Respondent, Henry Oryem Okello, payable on or before the next mention date
- Jurisdiction invoked
- Sections 1A, 1B & 3A Civil Procedure Act and Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lazarus Kibui Ndegwa v Labule Okello Lutwa [2015] KEELC 755 (KLR)", Case Analysis (2015). Originating Summons dated 22nd April 2013 (ruling on Chamber Summons dated 13th October 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/755/eng@2015-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.