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ELCPartially AllowedNot stated in judgment (application dated 26th September 2017)· [2017] KEELC 491 (KLR)

Fred I. Imbatu v Rashid Too Kipkurgat [2017] KEELC 491 (KLR)

High Court of Kenya (Environment and Land Court jurisdiction, Eldoret)
18 December 2017
MOM. A. Odeny
1,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to fully reverse orders made after a no-show, but still let the defendant present evidence to keep the trial fair.

What this practically means

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Executive summary

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This ruling by M.A. Odeny J, delivered at Eldoret on 18th December 2017, determines a Notice of Motion dated 26th September 2017 filed by the defendant/applicant. The application sought four orders: setting aside the court's orders closing the plaintiff's case on 26th September 2017; setting aside the order closing the defence case; recalling PW2, the Nandi County Land Surveyor, for cross-examination; and permitting the defendant and his witnesses to tender their evidence. The application was certified urgent and canvassed by written submissions. Counsel for the defendant, Mr. Oduor, argued that sufficient cause existed for the defendant's absence: the hearing date given in his absence was to be communicated by a witness, David Malakwen Choge, who died four days later without doing so; counsel had forgotten to diarise the matter; and counsel was coordinating Legal Aid awareness week. Counsel relied on Mbogo v Shah, Richard Ncharpi Leiyagu v IEBC, and Wachira Karani v Bildad Wachira. The plaintiff opposed, noting counsel's unsworn explanation and that the awareness week took place outside the very court. The court framed one issue: whether there was sufficient explanation for the ex parte proceedings. It found the explanations contradictory and possibly untruthful, holding that no sufficient cause was shown. Nonetheless, in the interest of justice, the court allowed only the reopening of the defence case for the defendant to tender his evidence, denied all other prayers, and fixed the defence hearing for 26th February 2018. No costs order was recorded.

Key legal issues

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01

Whether sufficient cause was shown to set aside the orders closing the plaintiff's and defence cases

Holding

No sufficient cause was shown; the explanations regarding the witness's failure to communicate the date, counsel's diary omission and the legal aid awareness week were found inconsistent and untrustworthy

Reasoning

The court examined the explanations: the hearing date was to be communicated by a witness who died four days later; counsel claimed to have forgotten to diarise the date and was coordinating Legal Aid awareness week. The plaintiff pointed out the awareness week was held outside the very court. The judge found the explanations contradictory and concluded something was untruthful.

p. 3
02

Whether the court's discretionary power could nonetheless be exercised in the interest of justice despite the insufficient explanation

Holding

In the interest of justice the court exercised its discretion only partially, reopening the defence case but refusing all other prayers

Reasoning

Although the court found no sufficient cause, it elected not to visit the full consequences on the defendant. In the interest of justice it allowed the defendant an opportunity to tender his evidence by reopening the defence case, while denying the recall of PW2 and the setting aside of the order closing the plaintiff's case.

p. 3

Legal principles established

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  • The court's discretion to set aside an ex parte judgment or order exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice
  • While a litigant is generally bound by his advocate's acts and omissions, courts must apply that principle with care to avoid unjust or ridiculous results

Court orders

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  1. 1.The defence case is reopened to give the defendant an opportunity to tender his evidence
  2. 2.Other orders sought in the application are denied
  3. 3.Defense hearing set for 26th February 2018

Authorities

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Cases cited (3)

  • Mbogo vs. Shah
    [1968] EA
  • Richard Ncharpi Leiyagu vs. IEBC & 20thers
    [2013] eKLR
  • Wachira Karani vs. Bildad Wachira
    [2016] eKLR
Jurisdiction invoked
Inherent discretionary power of the court to set aside its own orders (civil procedure discretionary jurisdiction); no specific provision cited

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, "Fred I. Imbatu v Rashid Too Kipkurgat [2017] KEELC 491 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 26th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/491/eng@2017-12-18

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