Kiprono Arap Koske v John Cheruiyot Koskei [2017] KEELC 2691 (KLR)
The bottom line
#A Kericho court set aside a land judgment won by default because the defendant proved his wife was critically ill, showing courts will reopen cases with good reasons.
What this practically means
#Executive summary
#Key legal issues
#Exercise of discretion to set aside an ex-parte judgment
The discretion is broad, to be exercised justly to avoid injustice, and the court should consider the circumstances of non-attendance and whether triable issues exist.
The court, relying on Yamko Yadpaz Industries Ltd v Kalka Flowers (citing Shah v Mbogo and Mbogo v Shah), held that discretion to set aside is unlimited save that it must be exercised justly, and is meant to relieve against accident, inadvertence or excusable mistake. The defendant demonstrated by documentary evidence that his wife was critically ill and died around the hearing date, excusing his absence, and his defence raised triable issues.
Excusability of the defendant's non-attendance
The defendant's absence was excusable because his wife was critically ill at the time of the hearing and subsequently passed away, as evidenced by medical records and a death certificate.
The defendant explained that his advocate never informed him of the hearing date and that his wife was critically ill when the suit was set down for hearing and later died. The court found the documentary evidence (medical records and death certificate) sufficient to establish that it would not be reasonable to have expected him to attend court on the hearing date.
Whether the defence raises triable issues
The defendant's defence raises triable issues, justifying that the suit be heard on the merits.
The court examined the defence filed on 19th February 2015, which objected to the sub-division of the suit land, and concluded that it raised triable issues. Combined with the excusable non-attendance, this justified setting aside the ex-parte judgment and directing compliance with Order 11 to facilitate an expeditious hearing on the merits.
Legal principles established
#- The discretion to set aside an ex-parte judgment is free but must be exercised justly, to avoid injustice from accident, inadvertence or excusable mistake, and not to assist a party who deliberately obstructs or delays justice.
- In an application to set aside, the court must consider the circumstances of the failure to attend court and whether the applicant has a defence raising triable issues.
Court orders
#- 1.The ex-parte judgment dated 30th September 2016 is set aside and the matter set down for hearing on the merits
- 2.Leave granted to the firm of Orina and Company Advocates to come on record for the defendant in place of Weldon Ngetich and Company Advocates
- 3.Parties to comply with Order 11 within the next 30 days to pave way for expeditious disposal of the case
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Inherent discretion of the court to set aside ex-parte judgments under the Civil Procedure Rules (civil procedure jurisdiction of the trial court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiprono Arap Koske v John Cheruiyot Koskei [2017] KEELC 2691 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2691/eng@2017-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.