Peter Ouma Oduogo & 8 others v Nellie Okwiri & 3 others [2018] KEELC 3738 (KLR)
The bottom line
#A Kenyan land court set aside a consent judgment and rulings made without a defendant present, because key parties were never properly served or included.
What this practically means
#Executive summary
#Key legal issues
#Regularity and validity of the consent dated 23/1/2013
The consent was irregular and invalid as counsel for the 1st defendant did not sign it and it does not appear in the proceedings or judgment.
The court examined the consent dated 23.1.2013 filed by counsel for the plaintiff, interested parties and the 2nd and 3rd defendants. Counsel for the 1st defendant was absent and did not sign. The consent does not appear in the proceedings or the judgment, so it cannot bind the 1st defendant.
Regularity of the ex parte proceedings of 12/4/2016
The proceedings of 12/4/2016 were irregular for want of evidence of service of the hearing notice on the 1st defendant.
Although the 1st defendant was served by substituted service for the hearing fixed for 24/2/2016, when the matter was rescheduled to 12/4/2016 there was no evidence of service of the new hearing date. The plaintiff testified on 12/4/2016 without proof of service, rendering those proceedings irregular.
Whether the court should set aside its own proceedings, judgment and decree and reinstate the suit
The court exercised its discretion in favour of setting aside and reinstating, finding triable issues, excusable mistake following the exit of counsel on record, and in the interest of justice.
Guided by Article 50(1) of the Constitution on fair hearing and Section 1A of the Civil Procedure Act on the overriding objective, and relying on the Kanwal case on technical judgments, the court held that a technical judgment has no place in a fair hearing and that the defence raised triable issues warranting an inter partes hearing.
Nature of the application vis-à-vis review
The application is not one for review under Order 45 rule 2.
The court distinguished the application from a review, noting it does not rest on discovery of new and important matter or an error apparent on the face of the record, but rather on the court's power to set aside irregular ex parte proceedings and consent orders.
Legal principles established
#- A consent order entered without the participation or signature of counsel for a party who ought to be bound is not regular and valid.
- Proceedings conducted without evidence of service of a hearing notice on a party are irregular.
Court orders
#- 1.Set aside the consent dated 23/1/2013 entered between the advocates for the plaintiff and interested parties and counsel for the 2nd and 3rd defendants
- 2.Set aside the court's proceedings of 12/4/2016, all subsequent proceedings, the judgment entered on 23/6/2016 and the consequent decree
- 3.Reinstate the suit for inter partes hearing and determination
- 4.Costs of the application to be borne by the 1st defendant
- Jurisdiction invoked
- Order 12 rule 7, Order 51 rules 1 and 3, Order 9 rules 9 and 10 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Ouma Oduogo & 8 others v Nellie Okwiri & 3 others [2018] KEELC 3738 (KLR)", Case Analysis (2018). Not stated in extract (Environment and Land Court, Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3738/eng@2018-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.