Paul Ogogo v Isaac Isiah Onyango Pande [2018] KEELC 4547 (KLR)
The bottom line
#A Kenyan court reopened a land case hearing after a law firm failed to serve notice of a change of advocates, and made the firm pay the costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant established grounds to set aside ex parte proceedings held on 7th February 2017
Application allowed in part: ex parte proceedings set aside only as regards PW4, who was recalled for cross-examination
The record showed the defendant had counsel on record throughout, but the confusion over which firm to serve arose because the incoming firm, M/S Amondi & Co Advocates, filed but never served its notice of change of advocates dated 4th February 2015. The plaintiff's uncontradicted deposition established that hearing notice for 7th February 2017 was properly served on the former firm, Oyuko & Co Advocates, who were formally still on record. The court found the application fair and reasonable but limited relief to the single witness heard ex parte.
Who should bear the costs of the application
The defendant's own advocates, M/S Amondi & Co Advocates, ordered to pay thrown away costs of Kshs.10,000/= to the plaintiff
The court attributed the service confusion directly to the incoming firm's failure to serve its notice of change of advocates on the plaintiff's counsel. Since the firm's own default occasioned the ex parte proceedings and the consequent application, fairness dictated that the firm, rather than the defendant or plaintiff, bear the thrown away costs, payable within thirty days.
Whether the court could set aside the order closing the defendant's case though not sought in the motion
Yes; the court vacated the order suo moto under Sections 1A and 1B of the Civil Procedure Act
The notice of motion sought only the setting aside of ex parte proceedings and recall of witnesses, not the reopening of the defendant's case. The court nonetheless invoked its discretion under the overriding objective provisions of the Civil Procedure Act to vacate the 7th February 2017 order closing the defence case, so the defendant could tender his evidence and the dispute be disposed of expeditiously and justly.
Legal principles established
#- An advocate who comes on record in place of another must serve the notice of change of advocates on the opposing party's counsel; failure to do so means service on the former counsel is effective and any resulting default is attributable to the incoming advocate
- The court may, suo moto and in pursuit of the overriding objective under Sections 1A and 1B of the Civil Procedure Act, vacate an order (closing a defence case) not challenged in the application before it, to secure expeditious disposal
Court orders
#- 1.The ex parte proceedings of 7th February 2017 when PW4's evidence was taken are set aside, limited to allowing the witness (Kelvin Otieno Pedo, PW4) to be recalled on the next hearing date for cross-examination by the Defendant, with liberty to the Plaintiff to re-examine
- 2.The order of 7th February 2017 closing the Defendant's case is set aside to allow the Defendant to tender his defence at the next hearing date
- 3.M/S Amondi & Co Advocates, on record for the Defendant, to pay the Plaintiff thrown away costs of the application assessed at Kshs.10,000/= within 30 days
- Jurisdiction invoked
- Not expressly stated; the ruling is made in exercise of the court's discretion under the Civil Procedure Act (Cap. 21), Sections 1A and 1B (overriding objective)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Ogogo v Isaac Isiah Onyango Pande [2018] KEELC 4547 (KLR)", Case Analysis (2018). Not stated in judgment (originating summons dated 22nd August 2012, filed 24th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4547/eng@2018-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.