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ELCAllowed· [2016] KEELC 1116 (KLR)

City Council of Nairobi v Simon Kimondo Mubea [2016] KEELC 1116 (KLR)

Environment and Land Court
29 January 2016
940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 12th June 2015, the plaintiff sought to set aside an order of 29th May 2015 dismissing its suit for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules, made ex parte after a notice to show cause was served and neither party appeared. The plaintiff's advocate, Ms. Anjela Maina, deposed that the notice was served only on 28th May 2015 for a hearing on 29th May 2015, on which day she had four other matters in different courts, and that by the time she appeared before Angote J. the suit had already been dismissed. She further explained the delay by a stay order issued by Angawa J. on 29th May 2007 pending determination of Nairobi HCCC No. 2012 of 1999, which remains undetermined. The defendant opposed through grounds of opposition dated 7th October 2015, contending the application was incompetent, that no good reason justified setting aside the order, that the suit was an abuse of process, and that reinstatement would cause him prejudice. The court held that it had power under Order 51 Rule 15 and section 3A of the Civil Procedure Act to set aside ex parte orders, a discretion to be exercised judiciously. It found the plaintiff had given a reasonable explanation for non-appearance and for the delay, since the suit could not be prosecuted while the stay was in force. The defendant's grounds went to the merits and no material proved abuse of process. The application was allowed as prayed, with costs in the cause.

Key legal issues

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01

Power to set aside an ex parte order of dismissal

Holding

The court has power under Order 51 Rule 15 of the Civil Procedure Rules and section 3A of the Civil Procedure Act to set aside an order made ex parte, to be exercised judiciously in the interest of justice

Reasoning

The dismissal of 29th May 2015 was made ex parte in the absence of both parties after a notice to show cause. Order 51 Rule 15 confers power to set aside ex parte orders and section 3A confers inherent power to make orders necessary for the ends of justice. Being discretionary, the power must be exercised judiciously, not capriciously, with justice to the parties as the aim.

p. 2
02

Sufficient cause and explanation for delay

Holding

The plaintiff established sufficient cause: counsel had four other matters in different courts on the hearing date, and the suit had been stayed since 2007 pending determination of HCCC No. 2012 of 1999

Reasoning

Counsel's affidavit explained that the notice to show cause was served only a day before the hearing date when she had four other matters, and by the time she appeared before Angote J. the suit had already been dismissed. The suit had also been stayed by Angawa J. on 29th May 2007 pending HCCC No. 2012 of 1999, which remained undetermined, so the plaintiff could not have prosecuted it.

p. 3
03

Defendant's grounds of opposition - abuse of process and prejudice

Holding

The defendant's grounds went to the merit of the plaintiff's case, which was not before the court, and no material was placed before the court to prove abuse of process

Reasoning

The defendant contended the suit was an abuse of process and that reinstatement would cause him great prejudice, but placed no material before the court in proof of that contention. The court held the grounds concerned the merit of the plaintiff's case, which was not before it for consideration on this application.

p. 3

Legal principles established

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  • Discretionary powers under section 3A of the Civil Procedure Act and Order 51 Rule 15 must be exercised judiciously, not capriciously, with the aim of doing justice between the parties
  • A party seeking to set aside an ex parte dismissal must give a reasonable explanation for non-appearance and for the delay in prosecution

Court orders

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  1. 1.The order of 29th May 2015 dismissing the suit for want of prosecution is set aside and the application dated 12th June 2015 is allowed as prayed
  2. 2.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Order 51 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent power to set aside ex parte orders)

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, "City Council of Nairobi v Simon Kimondo Mubea [2016] KEELC 1116 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1116/eng@2016-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.