Erick Kipsaina Chelimo v Vincent Kipruto Kipkonga & 2 others [2017] KEELC 948 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment because the defendants never received notice of the hearing, reaffirming every party's right to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to serve the hearing notice rendered the ex-parte judgment irregular
Yes; the hearing notice was served only on Tarus & Co. Advocates and not on Komen Kipchirchir & Co. Advocates who were on record, making the judgment irregular and liable to be set aside ex-debito justae
The court found the process server served the hearing notice only on the firm of Tarus & Co. Advocates, not on Komen Kipchirchir & Co. Advocates who had come on record. There being no good reason for the plaintiff not to serve the 2nd and 3rd defendants with a hearing notice, the resulting judgment was irregular. An irregular judgment is set aside as a matter of judicial duty, not discretion, upholding the integrity of the judicial process and the right to fair hearing under Article 50(1).
Whether the irregularity of the Notice of Appointment (instead of a Memorandum of Appearance) defeated the application
No; Article 159 of the Constitution cured the procedural technicality
The plaintiff argued that the notice of appointment was irregular as it violated Order 9 rule 7, and that the defendants filed a notice of appointment instead of a memorandum of appearance. The court accepted the irregularity but held that Article 159 requires the court not to place undue regard on procedural technicalities and to favour substantive justice, so the defect did not defeat the application.
Whether the former advocates' failure to file a defence should bar the setting aside
No; the mistake and indolence of counsel should not be visited on the party, and land disputes ought to be heard on merit
The applicants explained that they paid their advocates to file a defence which was never filed, and were not served with the hearing notice. The court found this to be serious indolence and mistake of counsel which should not be visited on the party. Given the subject matter was land, the interests of justice favoured a hearing on merit with no prejudice to the respondent.
Legal principles established
#- A judgment entered without service of a hearing notice is irregular and must be set aside as of right
- The mistake of an advocate should not be visited upon an innocent client where the situation can be remedied by costs
Court orders
#- 1.The exparte judgment entered against the 2nd and 3rd defendants and all consequential orders thereto be set aside ex-debito justae
- 2.The 2nd and 3rd defendants be allowed to file defence out of time
- 3.The draft defence be deemed as duly filed upon payment of the requisite court fees
- 4.Costs of the application in the cause
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules; Articles 50(1) and 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erick Kipsaina Chelimo v Vincent Kipruto Kipkonga & 2 others [2017] KEELC 948 (KLR)", Case Analysis (2017). HCC No. 864 of 1991-style ELC suit (not stated; suit filed in 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/948/eng@2017-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.