Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedCivil Suit No 18 of 2012· [2017] KEELC 2679 (KLR)

Emily Chepng’eno Ruto Suing As The Legal Representative Of The Estate Of David Kiplangat Ruto & 6 others v David Kiprono Koske [2017] KEELC 2679 (KLR)

High Court of Kenya (Environment and Land Court jurisdiction, land matter)
16 June 2017
JOJ. M Onyango
634 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan court reinstated a defendant's struck-out defence because the advocate's illness explained the default, but ordered the defendant to pay thrown away costs.

What this practically means

#

Executive summary

#
This ruling by J. M Onyango, J, dated 16th June 2017, determined the Defendant's application dated 24th November 2016, brought under Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the order of 24th October 2016 striking out his defence and to have the defence reinstated. The defendant explained, through an uncontroverted affidavit, that his advocate's prolonged illness prevented attendance at court and payment of adjournment costs. The plaintiff, though filing no replying affidavit, opposed the application in submissions, arguing the defence was struck out for non-compliance with court orders and that the application merely sought to forestall the suit's conclusion, while requesting thrown away costs if the dismissal were set aside. The court identified the sole issue as whether the defendant was entitled to the orders sought. Applying Patel v East Africa Cargo Handling Services Ltd and Maina v Muriuki, the court held that the wide discretion to set aside dismissals exists to do justice between the parties and to avoid injustice from accident, inadvertence or excusable mistake. It found the advocate's illness a reasonable explanation, that the defence was not a mere denial but raised triable issues, and that in a land matter both parties should be heard on the merits. The court set aside the order dismissing the defence, directed hearing of the suit within 60 days, and awarded the plaintiff thrown away costs of Kshs. 20,000.

Key legal issues

#
01

Whether the court should exercise its discretion to set aside the order striking out the defendant's defence

Holding

The discretion was exercised in favour of the defendant because he gave a reasonable, uncontroverted explanation (his advocate's illness) for non-attendance and non-payment of adjournment costs, and his defence raised triable issues in a land matter where both parties should be heard on the merits.

Reasoning

The court applied the principles in Patel v East Africa Cargo Handling Services Ltd and Maina v Muriuki, which allow setting aside of interlocutory judgments/dismissals to avoid injustice from accident, inadvertence or excusable mistake. The defendant's advocate's illness was a reasonable explanation, not a deliberate default. Since the defence was not a mere denial and raised a prima facie triable issue, justice required that both parties be heard on the merits, subject to thrown away costs.

p. 2

Legal principles established

#
  • A court will not usually set aside a regular judgment unless satisfied there is a defence on the merits, meaning a triable issue raising a prima facie defence.
  • The mistakes of an advocate should not be visited on the client.

Court orders

#
  1. 1.Set aside the order dismissing the defendant's Defence
  2. 2.Direct that the suit be set down for hearing within the next 60 days
  3. 3.The Defendant to pay thrown away costs of Kshs. 20,000 for the inconvenience occasioned to the Plaintiff

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Actsections 1A, 1B and 3A

Cases cited (2)

  • Patel V East Africa Cargo Handling Services Ltd
    (1974) EA 75
  • Maina V Muriuki
    (1984 KLR 407)
Jurisdiction invoked
Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Emily Chepng’eno Ruto Suing As The Legal Representative Of The Estate Of David Kiplangat Ruto & 6 others v David Kiprono Koske [2017] KEELC 2679 (KLR)", Case Analysis (2017). Civil Suit No 18 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2679/eng@2017-06-16

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