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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 4287 (KLR)

Presbyterian Church of East Africa Pwani Presbythery v Juma Jefwa Amboe Sidi Chengo Ngato & 5 others [2018] KEELC 4287 (KLR)

Environment and Land Court
28 February 2018
AOA. Omollo
913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa land court set aside ex parte orders because a missed hearing date was honestly explained, but only on condition protecting the other side.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (A. Omollo, J) on an application dated 21.11.2017 by the 1st–3rd Interested Parties seeking vacation of ex parte proceedings and orders made on 2nd November 2017 and a rehearing inter partes of the notice of motion dated 11th October 2017. The applicants, who are in occupation of the suit property, explained that their advocate misdiarised the hearing date as 22nd November instead of 2nd November 2017, and that the matter did not appear in the cause list. They also noted that the 2013 judgment and decree under which the plaintiffs demolished their wall had been vacated on 8th March 2017. The plaintiffs opposed, asserting ownership of the suit property and the need to maintain injunction orders to preserve it, and denied material concealment of facts. The court applied the principles in Mbogo v Shah and Patel v EA Cargo Handling Services: setting aside is a discretion exercised to avoid injustice, must be sought without delay, and will be refused where it would serve no useful purpose. Finding the application made promptly and the non-attendance explained, and invoking natural justice that parties should not be condemned unheard, the judge allowed the application on condition that the ex parte orders of 17th October 2017 remain in force until the determination of the 11th October 2017 application. The plaintiffs were awarded costs of the application and attendance costs for 2nd November 2017.

Key legal issues

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01

Whether the ex parte orders of 2.11.2017 ought to be set aside

Holding

Yes, on condition that the ex parte orders of 17.10.17 are extended pending determination of the application dated 11.10.2017

Reasoning

The court applied the Mbogo v Shah and Patel v Cargo Handling principles: setting aside is a discretion aimed at avoiding injustice. The application was brought without delay, the advocate's misdiarisation explained the absence, the Interested Parties were in occupation of the suit property and would suffer prejudice if unheard, and attendance costs adequately compensate the plaintiffs' advocate. Natural justice favours hearing all parties on the merits.

p. 2
02

Whether the delay and the advocate's misdiarisation disentitle the applicants

Holding

No - the application dated the same month as the impugned orders was made without delay

Reasoning

The court found the application dated 21.11.2017 was brought in the same month as the 2.11.2017 orders, hence without delay. The misdiarisation of the hearing date (22nd instead of 2nd November) was accepted as an explanation for non-attendance, and the matter did not appear in the cause list, so the applicants were not wilfully absent.

p. 2

Legal principles established

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  • The power to set aside ex parte orders is a discretionary one exercised to avoid injustice, not to aid parties who intend to derail justice, and it must be exercised promptly and only where the orders will serve a useful purpose
  • Parties should not be condemned unheard; a party with a plausible explanation for non-attendance should ordinarily be given an opportunity to be heard on the merits

Court orders

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  1. 1.The application dated 21.11.2017 is allowed on condition that the ex parte orders of 17.10.17 are extended and remain in force until the determination of the application dated 11.10.2017
  2. 2.All parties are to be afforded an opportunity to argue the application dated 11.10.2017
  3. 3.The plaintiffs are awarded costs of the present application and their costs for Court attendance on 2.11.2017

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Civil Procedure RulesOrder 51

Cases cited (2)

  • Mbogo & Another vs Shah
    (1968) E.A 93
  • Patel V. E. A CARGO HANDLING SERVICES LTD
    (1974) E. A 75
Jurisdiction invoked
Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

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, "Presbyterian Church of East Africa Pwani Presbythery v Juma Jefwa Amboe Sidi Chengo Ngato & 5 others [2018] KEELC 4287 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4287/eng@2018-02-28

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