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ELCDismissedNot stated in judgment· [2018] KEELC 3170 (KLR)

Mary Munyao Nzeki v Schou Finn Ole [2018] KEELC 3170 (KLR)

Environment and Land Court (or High Court) - Kenya
25 May 2018
AOA. Omollo
1,038 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to cancel orders giving rent from an Ukunda property to the defendant, ruling the case was still alive through his counter-claim.

What this practically means

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Executive summary

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The applicant, Mary Munyao, moved the Court by notice of motion dated 9th April 2017 under Order 12 & 51 of the Civil Procedure Rules and Sections 1A, 1B & 3A of the Civil Procedure Act, seeking to set aside the ruling/orders of 20th April 2017 which directed that rents collected from L.R. Kwale/Ukunda/4377 be paid to the defendant/respondent pending hearing of the suit, and to restrain disposal of the property. She argued the orders were obtained by concealment of material facts and that her suit had been withdrawn on 18th February 2016, so no suit was pending when the orders issued. The respondent opposed via a replying affidavit, showing he had filed and served a defence and counter-claim before the withdrawal, and that the applicant gave no substantive reason for failing to attend the hearing of 20th April 2017. The Court, applying Shah vs Mbogo and Municipal Council of Meru vs National Housing Corporation, held that setting aside ex parte orders is discretionary, weighing injustice against delay tactics. It found the counter-claim subsisting after withdrawal of the main claim, no concealment by the defendant, and no viable basis for discretion. Because the orders are temporary, the applicant retains liberty to defend the counter-claim without injustice. The application was dismissed with costs to the respondent, delivered on 25th May 2018 by A. Omollo, Judge.

Key legal issues

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01

Whether the ex parte orders of 20th April 2017 ought to be set aside

Holding

The application was dismissed; no basis for discretion was made out

Reasoning

The applicant was aware of the application fixed for hearing and gave only that her advocate was away, without disclosing the reason for the non-attendance. Further, her contention that no suit existed was wrong because the defendant's defence and counter-claim, filed and served before the withdrawal, remained on record. The orders being temporary, she retains liberty to defend the counter-claim, so no injustice arises.

p. 2
02

Whether the defendant concealed material facts in obtaining the orders

Holding

The accusation had no basis; the defendant was demonstrably alive to the withdrawal and his counter-claim subsisted

Reasoning

The heading of the defendant's application of 5th April 2017 styled himself as plaintiff and the previous plaintiff as 1st defendant, showing he knew of the withdrawal. Since the defendant's counter-claim was subsisting on record when the orders issued, the orders could properly issue and there was no concealment.

p. 2

Legal principles established

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  • Setting aside ex parte orders is discretionary and must balance avoiding injustice with preventing delay tactics
  • In exercising discretion the Court considers the reason for default and the merits of the case, but is not limited to those considerations
  • Withdrawal of a plaintiff's claim does not extinguish a subsisting counter-claim on record

Court orders

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  1. 1.The application dated 9.4.2017 and filed on 10th May 2017 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrders 12 & 51

Cases cited (2)

  • Shah vs Mbogo
    (1967) E A 116
  • Municipal Council of Meru vs National Housing Corporation & 54 others
Jurisdiction invoked
Order 12 & 51 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act

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, "Mary Munyao Nzeki v Schou Finn Ole [2018] KEELC 3170 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3170/eng@2018-05-25

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