Okal Ongaro v James Owiyo Odipo [2017] KEELC 274 (KLR)
The bottom line
#A Kenyan land court refused to set aside a judgment, ruling that ignoring a hearing notice after being properly served amounts to deliberately evading justice, not an excusable mistake.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Is the Defendant/Respondent entitled to the prayers sought in the application, including stay of proceedings and stay of execution?
- 2.Should the judgment and decree of 5th June 2015 be varied, rescinded and/or set aside and the suit reinstated for hearing on merits?
Key legal issues
#Whether a stay of proceedings can issue over an application still pending hearing where judgment has already been delivered in the suit
No; there is no order of stay of proceedings where the proceedings sought to be stayed are non-existent or where judgment has already been delivered in the suit.
The court relied on Republic v Kenya Anti-Corruption Commission and 2 others, and on Black's Law Dictionary's definition of a stay as not reversing or undoing what has been done but merely suspending the time required for performance of the mandate stayed. The application sought to be stayed was still pending, yet judgment in the suit had already been delivered, so no stay of proceedings was available.
Whether the regular ex parte judgment of 5th June 2015 should be set aside given counsel's failure to attend hearing
No; the judgment was regular and the Defendant deliberately sought to evade or delay the course of justice by failing to attend hearing despite due service.
The court applied Shah v Mbogo and Chemwolo v Kubende principles on setting aside ex parte judgments, and noted that the defendant's advocates had been duly served with a hearing notice and a statement of defence had been filed but the defendant failed to attend. Although mistake of counsel may excuse a party, the court found deliberate evasion here and declined to set aside the judgment.
Costs of the application
Each party to bear own costs.
Under the proviso to Section 27(1) of the Civil Procedure Act, costs are discretionary and follow the event, but the court may depart from that principle. Citing Rai v Rai and Samwel Kamau Macharia v Kenya Commercial Bank, the court held that costs are compensatory rather than punitive, and since both parties were represented and had incurred costs, each party should bear its own costs in the interests of the ends of justice.
Legal principles established
#- Setting aside a judgment is an exercise of the court's discretion intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructs or delays justice
- A party is not to suffer penalty due to the mistake of counsel; a case has to be determined on its merit
- Denying a party a hearing should be the last resort
- Costs follow the event but are meant to compensate the successful party, not to penalize the losing party
Court orders
#- 1.The Notice of Motion dated 1st February 2017 is dismissed
- 2.Each party to bear own costs
- 3.Right of appeal explained to the parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion of the court to set aside regular judgment under the Civil Procedure Act, Cap 21, and Civil Procedure Rules, 2010 (Order 42 rule 6)
Relief refused
#Interim stay of proceedings, particularly the hearing of the Notice of Motion dated 6th December 2016
There can be no stay of proceedings where the proceedings sought to be stayed are pending; judgment has already been delivered in the suit
Interim stay of execution, enforcement and/or implementation of the judgment and decree of 5th June 2015
The Applicant failed to satisfy the conditions for stay of execution and the judgment was regular
Setting aside the judgment and decree of 5th June 2015 and reinstating the suit for hearing on merits
The Defendant deliberately sought to evade or delay the course of justice by failing to turn up for hearing despite due service; no sufficient case to set aside the judgment
Costs
Each party to bear own costs
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.
A fortiori, I find the application unmerited. I dismiss it accordingly.
The judgment dated 5th June, 2016 is perfectly regular. Whereas I consider the arguments advanced by the Defendant/Applicant's counsel, I am constrained to uphold able submissions by counsel for the Plaintiff/Respondent. There is no sufficient case to set aside the judgment.
In the circumstances, I am of the opinion that each party bear own costs to ensure the ends of justice.Each party to bear own costs.
This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but not to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice
A "stay" does not reverse , annul, undo or suspend what already has been done or what is not specifically stayed nor pass on the merits of theorders of the trial court, but merely suspends the time required for performance of the particular mandates stayed, to preserve a status quo pending appeal.
Issues in the judgment
#Internal inconsistency in the date of the judgment sought to be set aside: the application describes it as delivered on 5th June 2015, but the ruling later refers to 'The judgment dated 5th June, 2016'.
The judgment quotes the ex parte judgment as having been delivered by Okongo, J, referencing a hearing on 26th January 2015 and affidavit of service of 3/12/2014, while the application described the judgment as 'Ex-parte Judgment'; there is a discrepancy in whether the parties were represented as instructed by 'an unqualified counsel' yet the ex parte record shows only that defendant's advocates J.N Owetch and Co. Advocates were served but absent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okal Ongaro v James Owiyo Odipo [2017] KEELC 274 (KLR)", Case Analysis (2017). Notice of Motion dated 1st February 2017 (in suit concerning LR. No. KAMAGAMBO/KANYAJUOK/1331). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/274/eng@2017-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.