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ELCAllowed· [2017] KEELC 2691 (KLR)

Kiprono Arap Koske v John Cheruiyot Koskei [2017] KEELC 2691 (KLR)

Environment and Land Court (magistrates'/ELC first-instance matter)
16 June 2017
957 words in judgment
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The bottom line

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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

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Executive summary

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The plaintiff sued the defendant on 2nd February 2015 seeking sub-division of land parcel KERICHO/SILIBWET/944 into two equal shares on the ground that he was entitled to half of it. The defendant filed a defence opposing the sub-division. When the suit came up for hearing on 30th June 2016 the defendant did not attend, and the suit proceeded as an undefended suit; judgment was entered for the plaintiff on 30th September 2016 ordering sub-division, and the decree was extracted on 5th October 2016 with execution intended. The defendant, by application dated 24th November 2016 filed through the firm of Orina and Company Advocates replacing Weldon Ngetich and Company Advocates, sought stay of execution and setting aside of the judgment so the suit could be heard on the merits. He explained that his previous advocate never informed him of the hearing date and that his wife was critically ill at the time and subsequently died, producing medical records and a death certificate. The court applied the well-known principles in Shah v Mbogo and related authorities: 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 deliberate obstruction. Finding the non-attendance excusable and the defence possessed of triable issues, the court allowed the application, set aside the ex-parte judgment and all consequential orders, directed the parties to comply with Order 11 within 30 days for expeditious disposal, and ordered that costs of the application be in the cause. The matter was to proceed to hearing on the merits.

Key legal issues

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01

Exercise of discretion to set aside an ex-parte judgment

Holding

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.

Reasoning

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.

p. 2
02

Excusability of the defendant's non-attendance

Holding

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.

Reasoning

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.

p. 2
03

Whether the defence raises triable issues

Holding

The defendant's defence raises triable issues, justifying that the suit be heard on the merits.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The ex-parte judgment dated 30th September 2016 is set aside and the matter set down for hearing on the merits
  2. 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. 3.Parties to comply with Order 11 within the next 30 days to pave way for expeditious disposal of the case
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (6)

  • Yamko Yadpaz Industries Ltd Vs Kalka Flowers
    2013 KLR
  • Maina Vs Mugiria
  • Shah V Mbogo
    1967 EA 116 at 123B
  • Mbogo V Shah
    1967 EA 93
  • Kanji Naran V Velji Ramji
    1954 21 EACA 20
  • Smith V Middleton
    1972 SC 30
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

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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, "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.