Samuel Njehia Gitau v Joyce Wanjiku & another [2018] KEELC 1540 (KLR)
The bottom line
#A Kenyan court allowed a defendant who missed her hearing to rejoin the case, but refused to restart it from scratch.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte proceedings of 20th July 2017 should be set aside
The application was allowed only in part: the order closing the Plaintiff's case was set aside to permit recall and cross-examination, but the proceedings were not set aside wholesale
The court applied the settled principles for setting aside ex-parte decisions: sufficient explanation for non-attendance, absence of undue delay, and prejudice. It found the advocate's illness and firm's other engagements a sufficient explanation, no undue delay since the application was filed within a reasonable time, and that refusing the application would occasion greater prejudice by condemning the Defendant unheard. It however limited the relief to cross-examination and the Defendant's evidence, with throw away costs, mindful of the suit's age.
Whether the Defendant's explanation for non-attendance was sufficient
The court found the explanation sufficient to excuse the Defendant, holding that a mistake of counsel should not be visited on the litigant
The Defendant's advocate was on sick leave and other members of the firm were abroad or engaged in other courts. Although the Defendant herself was also absent, the court invoked the principle that a mistake of the advocate should not be visited upon the client, drawing on Murai v Wainaina and Ahmed v Highway Carriers.
Legal principles established
#- A litigant should not be deprived of a hearing on the merits for the mistakes of counsel unless there is fraud or intention to overreach
- The discretion to set aside ex-parte proceedings must be exercised judiciously and upon reasons
Court orders
#- 1.Stay of any further mention date for taking of a judgement date
- 2.Setting aside of the order of close of the Plaintiff's case and allowing recall of the Plaintiff for cross-examination by the Defendant's advocate on the evidence already adduced
- 3.Refusal to set aside the proceedings of 20th July 2017 or order the matter to start afresh
- 4.Defendant allowed to tender her evidence in support of her case before 31st December 2018
- 5.Defendant to pay throw away costs of Kshs.20,000/= to the Plaintiff
- 6.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 3, 3A of the Civil Procedure Act, Order 12 Rules 2 and 7, Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Njehia Gitau v Joyce Wanjiku & another [2018] KEELC 1540 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1540/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.