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ELCAllowedNot stated in the judgment (Originating Summons at Kajiado; application dated 11th April 2018, amended 2nd July 2018)· [2019] KEELC 483 (KLR)

Kileu Nalotuesha Lemutu v Leonard Njau t/a Kinyanjui & Njau Advocates [2019] KEELC 483 (KLR)

Environment and Land Court
2 December 2019
COCHRISTINE OCHIENG
1,623 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside an ex parte order, confirming courts prefer hearing disputes on their merits over technical wins from missed hearings.

What this practically means

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Executive summary

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The Defendant, an advocate, moved the court by Notice of Motion dated 11th April 2018 (amended 2nd July 2018) under Order 51, Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking to set aside an ex parte order issued on 15th March 2018 in an Originating Summons filed by the Plaintiff, Kileu Naloletusha Lemutu. The Defendant, Leonard Njau, claimed he was unaware of the hearing notice served on 7th March as he was absent from the office, and that he held a good defence: he had acted on the Plaintiff's instructions relating to a sale of 30 acres, negotiated a refund of Kshs. 4.2 million, purchased 10 acres for the Plaintiff under an agreement of 16th May 2013 whose purchase price the Plaintiff acknowledged, and the Plaintiff refused to remove a caution on the land. He also pointed to a pending suit, Kajiado CMCC No. 260 of 2016, alleging the Originating Summons was an abuse of process. The Plaintiff opposed, alleging contempt and insisting the Defendant was duly served, held his title on instructions to subdivide and transfer to a third party, and had not shown a defence with chances of success. The sole issue framed was whether the order of 15th March 2018 should be set aside. Relying on Patel v EA Cargo Handling Services and CMC Holdings Ltd v James Mumo Nzioki, the court found the draft defence and annexures disclosed triable issues and a prima facie defence, and allowed the application, setting aside the order, directing the filing of a replying affidavit within 14 days, and awarding costs of the application to the Plaintiff.

Key legal issues

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01

Whether the ex parte order of 15th March 2018 should be set aside

Holding

The order was set aside because the defendant demonstrated a prima facie defence raising triable issues and the discretion favours determination on the merits

Reasoning

The defendant admitted the hearing notice was served at his office but he was handling another matter. His draft replying affidavit and annexures revealed an advocate-client relationship, legal work undertaken on the suit land involving a third party, and a Sale Agreement of 16th May 2013 confirming receipt of purchase price. These raise triable issues amounting to a prima facie defence, and justice requires all parties to present evidence and the suit to be determined on its merits.

p. 2

Legal principles established

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  • Under Order 12 rule 7, the court may on application set aside or vary a judgment or order entered or a suit dismissed, upon such terms as may be just
  • A defence on merits means a triable issue, not a defence that must succeed
  • The discretion to set aside ex parte orders exists to ensure a litigant does not suffer injustice from excusable mistake or error

Court orders

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  1. 1.The Defendant's application dated 11th April 2018 and amended on 2nd July 2018 is allowed
  2. 2.The Order issued on 15th March 2018 is set aside
  3. 3.The Defendant is directed to file and serve his replying affidavit in respect of the Originating Summons within 14 days from the date of the order
  4. 4.Costs of the application awarded to the Plaintiff
Jurisdiction invoked
Order 51 and Order 12 Rule 7 of the Civil Procedure Rules and Section 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, "Kileu Nalotuesha Lemutu v Leonard Njau t/a Kinyanjui & Njau Advocates [2019] KEELC 483 (KLR)", Case Analysis (2019). Not stated in the judgment (Originating Summons at Kajiado; application dated 11th April 2018, amended 2nd July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/483/eng@2019-12-02

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