Benjamin Kipkulei v Shadrack Kamaamia & 7 others [2017] KEELC 1076 (KLR)
The bottom line
#The Nakuru Environment and Land Court refused to undo earlier proceedings because the defendants, though represented and informed, never filed a defence or showed prejudice.
What this practically means
#Executive summary
#Key legal issues
#Setting aside of ex parte proceedings and orders where the applicant was represented in court
The application for setting aside was refused because the defendants were represented when the adjournment application was dismissed and had already been granted an adjournment on 11th May 2017
The court applied the Mbogoh v Shah and Kanyiita Nderitu principles distinguishing regular from irregular default. Since the defendants had notice and representation, the discretion was discretionary, not ex debito justitiae. Justice had to weigh both parties; the plaintiff had dutifully attended all hearing dates while the defendants sought further indulgence. No prejudice to the defendants was demonstrated.
Absence of a defence and triable issues
Setting aside would serve no useful purpose since the defendants had filed no defence, complied with no Order 11 directions, and never sought extension of time to file a defence
The defendants were ordered on 9th November 2016 to file a defence within 30 days but never did, nor sought setting aside of that order or extension of time. Without a defence pleading a boundary dispute, the claimed boundary issue and need for a surveyor's report could not arise. The court stressed that the merits remain for full hearing.
Functus officio regarding the 13th June 2017 orders
Having heard and determined the adjournment application on its merits, the court could not revisit those orders via an application for setting aside; the remedy is review or appeal
The court held that an application for setting aside is not a vehicle to challenge orders made after a contested adjournment application was determined on the merits. A party aggrieved must pursue review if valid grounds exist, or appeal.
Counsel's conduct in holding brief with limited instructions
The court censured the practice of holding brief with limited instructions and the abandonment of a brief mid-proceedings as contrary to counsel's duty under section 1A of the Civil Procedure Act
Ms. Moenga, holding Mr. Kamwaro's brief, left court after the adjournment ruling so no one cross-examined PW1. The court held holding counsel fully responsible and criticized the unexplained absence of Mr. Kamwaro, finding no specific evidence he was engaged at the Narok Children's Court service week.
Legal principles established
#- Where orders were made after due service, the court considers the reason for non-attendance, delay, triable issues, prejudice and the interest of justice before setting aside
- Where an adjournment application was heard and determined on the merits, the resulting orders cannot be revisited by an application for setting aside; the court is functus officio and the aggrieved party's remedy is review or appeal
- Counsel holding brief is as fully responsible to the court as counsel formally on record
Court orders
#- 1.Notice of Motion dated 24th July 2017 dismissed with costs
- Jurisdiction invoked
- Articles 159 and 50 of the Constitution; sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; section 18 of the Land Registration Act; Order 51 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kipkulei v Shadrack Kamaamia & 7 others [2017] KEELC 1076 (KLR)", Case Analysis (2017). Notice of Motion dated 24th July 2017 (within the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1076/eng@2017-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.