Delgreen Limited v Odindo Alfred & 15 others [2017] KEELC 3457 (KLR)
The bottom line
#Kenya's High Court set aside an interlocutory judgment, confirming courts strongly prefer hearing both sides over technical objections.
What this practically means
#Executive summary
#Key legal issues
#Whether an application supported by an advocate's affidavit is defective under Rule 9 of the Advocates Practice Rules
The preliminary objection fails; the advocate's affidavit is permissible on formal, non-contentious matters, and no likelihood of the advocate being a witness was demonstrated, nor was a replying affidavit filed contesting the facts
Rule 9 bars an advocate from appearing where he may be required as a witness, but preserves evidence on formal or non-contentious matters. The only potentially contentious matter was service, which was admitted. The defendants did not show Mr Oloo would be called as a witness, and filed no replying affidavit contesting the facts deponed to, so the authority cited favoured the applicant.
Whether the interlocutory judgment should be set aside and leave to defend the counter-claim granted
Yes; the discretion to set aside interlocutory judgment is exercised judiciously, the delay of about 1½ months was not inordinate, the mistake was counsel's, the claim and counter-claim had not gone to trial, and no prejudice was shown
Natural justice and Articles 48 and 50 require parties be heard; denying a hearing is a last resort. Both the plaintiff's claim and the defendants' counter-claim remain undetermined, so the defendant would still need formal proof. The application was filed timeously within about 1½ months of the interlocutory judgment. The Fair Administrative Action Act argument was rejected as a misinterpretation.
Legal principles established
#- To deny a litigant a hearing should be the last resort of the Court when considering an application to set aside an ex parte judgment
- Where the supporting affidavit is not contested by a replying affidavit, the court cannot treat the facts deponed to as contentious, and Rule 9 of the Advocates Practice Rules is not offended
- The Fair Administrative Action Act does not apply to interlocutory processes governed by the Civil Procedure Rules
Court orders
#- 1.Preliminary objection dated 11.2.2016 dismissed
- 2.Interlocutory judgment entered on 15.10.2015 set aside
- 3.Time to file the defence to the counter-claim extended
- 4.Defence to the counter-claim deemed as duly filed upon payment of the requisite court fees
- 5.Defence to the counter-claim to be served upon the defendants within 14 days
- 6.Costs of the application awarded to the 1st and 3rd–15th Defendants in the cause
- Jurisdiction invoked
- Inherent jurisdiction under the Civil Procedure Rules to set aside interlocutory judgment; Articles 48 and 50 of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Delgreen Limited v Odindo Alfred & 15 others [2017] KEELC 3457 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3457/eng@2017-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.