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ELCAllowedNot stated in the judgment· [2018] KEELC 3352 (KLR)

Simon Wambugu v Machakos County Government &another; [2018] KEELC 3352 (KLR)

Environment and Land Court
11 May 2018
SOS. Okong'o
808 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 set aside orders made without proper notice, confirming parties cannot lose a case because no one told them where it would be heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Milimani, Nairobi, delivered by S. Okong'o, J, on 11th May 2018. The 1st Respondent moved the court by Notice of Motion dated 17th November 2015 seeking to set aside orders made on 19th October 2015, to have the Petitioner's Notice of Motion dated 22nd September 2015 heard afresh inter parties, and to have its replying affidavit deemed as filed within time. The 1st Respondent explained that it was unaware the suit had been transferred from the High Court at Machakos to the Environment and Land Court at Milimani, Nairobi; it had filed a replying affidavit in Machakos on 16th October 2015 and its advocate attended Machakos on the hearing date, finding the court not sitting. It only learnt of the transfer when served with the order on 3rd November 2015. The Petitioner, through affidavits sworn by Simon Wambugu, opposed the application, contending prejudice. The court, having considered the affidavits and written submissions, found the 1st Respondent's averments uncontroverted: it intended to oppose the application and its non-attendance in Nairobi was neither deliberate nor intended to delay the hearing, but resulted from lack of communication as to the venue. The court held the 1st Respondent should not suffer for the failure of the court and the Petitioner to inform it where the application would be heard. The application was allowed: the orders of 19th October 2015 were set aside, the Petitioner's application of 22nd September 2015 was to be heard afresh in the Environment and Land Court at Machakos, the status quo was to be maintained for sixty days, the file was to be returned to Machakos, and costs were to be in the cause.

Key legal issues

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Setting aside ex parte orders obtained without notice to a party unaware of the transfer of the suit

Holding

The ex parte orders of 19th October 2015 were set aside and the underlying application was directed to be heard afresh, because the 1st Respondent was never informed that the application would be heard in Nairobi rather than Machakos

Reasoning

The court found the 1st Respondent's averments uncontroverted: it filed a replying affidavit in Machakos on 16th October 2015 and its advocate attended Machakos on the hearing date. Its non-attendance in Nairobi was not deliberate but resulted from lack of communication about the venue. The court held the Respondent should not suffer for the court's and Petitioner's failure to communicate the transfer.

Legal principles established

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  • A party should not suffer for a failure by the court and the opposing party to inform it of the court where an application was to be heard

Court orders

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  1. 1.The orders issued herein on 19th October, 2015 are set aside
  2. 2.The Petitioner's application dated 22nd September, 2015 shall be heard afresh in the Environment and Land Court at Machakos
  3. 3.The status quo shall be maintained for a period of sixty (60) days pending the hearing of the application
  4. 4.This file shall be returned to the Environment and Land Court at Machakos for further action
  5. 5.The costs to be in the cause
Jurisdiction invoked
Inherent and case-management powers of the Environment and Land Court over a suit transferred from the High Court at Machakos (specific provision not stated in the judgment)

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, "Simon Wambugu v Machakos County Government &another; [2018] KEELC 3352 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3352/eng@2018-05-11

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