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ELCDismissedNot stated in judgment· [2019] KEELC 1286 (KLR)

Dickson Opola Okumu v Tom Odhiambo Odari & another [2019] KEELC 1286 (KLR)

Environment and Land Court
25 October 2019
AOA. O. Ombwayo
1,748 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 refused to reverse a land judgment because the defendants blamed their lawyer but couldn't show they had followed up on their own case.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking an injunction restraining trespass on land parcel KISUMU/KOGONY/1649, eviction, damages for trespass and mesne profits. The Plaintiff's case was heard fully; the Defendants entered appearance and filed a defence alleging fraudulent registration of the title, but did not adduce evidence, and their defence case was declared closed on 29th May 2018. Judgment was entered against them on 13th March 2019. The Defendants then applied on 12th June 2019, under Order 22 Rule 22 and Order 51 Rules 1 and 15 of the Civil Procedure Rules, for a stay of execution, setting aside of the judgment, and leave to re-open the defence case, attributing their default to loss of contact with their advocates. The Plaintiff opposed, contending the Defendants squandered multiple opportunities to defend the suit. Ombwayo J. applied the settled principles for setting aside ex-parte judgments, drawn from Samson Karino Ole Nampaso v Kaana Ka Arume Co. Ltd, Philip Ongom v Catherine Nyero Owota and Wachira Karani v Bildad Wachira. The court accepted that the defence raised triable issues, including the fraud allegation, but held that loss of contact between the Defendants and their advocate was not sufficient cause: the Defendants had been in contact with counsel as late as 22nd February 2018, had not complied with orders of 15th June 2017, and had filed the application three months after judgment. Their conduct showed disinterest in diligently canvassing their defence. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether loss of contact between a defendant and his advocate constitutes sufficient cause for setting aside an ex-parte judgment

Holding

No; in this case it did not constitute sufficient cause because the Defendants had been in contact with counsel as late as 22nd February 2018, had not complied with court orders of 15th June 2017, and the application was filed three months after judgment.

Reasoning

The court applied the principles in Samson Karino Ole Nampaso, Philip Ongom and Wachira Karani. It examined the Defendants' conduct after the alleged loss of contact, following Rukenya Buuri where Njoroge J. held that a litigant must diligently follow up the handling of his case by his advocate. Both the Defendants and their Counsel were found to have been economical with the circumstances surrounding the loss of contact, and the three-month delay in filing the application evinced no diligence.

p. 2
02

Whether the Defendants' defence raised triable issues despite the failure to demonstrate sufficient cause

Holding

Yes, the defence raised triable issues, including the allegation that the Plaintiff fraudulently registered himself as proprietor, but this alone did not warrant setting aside the judgment.

Reasoning

The court acknowledged that the defence filed on 19th July 2012 denied the Plaintiff's claims and alleged fraudulent registration, and counsel had cross-examined the Plaintiff on the identity of the seller. These were triable issues which would ordinarily have warranted ventilation on merit, but the Defendants' default and indolence disentitled them to the discretion being exercised in their favour.

p. 2

Legal principles established

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  • A litigant must diligently follow up the handling of his case by his advocate; blaming a former advocate is not sufficient cause to set aside an ex-parte judgment
  • The test is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing; sufficient cause is a question of fact

Court orders

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  1. 1.The Defendants' application dated 12th June 2019 is dismissed
  2. 2.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure ActSections 2 and 80
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 51 Rules 1 and 15
  • Civil Procedure RulesOrder 7 Rule 12
  • Civil Procedure RulesOrder 45

Cases cited (8)

  • Samson Karino Ole Nampaso v Kaana Ka Arume Co. Ltd
    [2016] eKLR
  • Shah vs. Mbogo & Another
    [1967] EA 116
  • Mbogo vs. Shah
    [1968] EA 93
  • Philip Ongom, Capt v Catherine Nyero Owota
    (Civil Appeal No. 14 of 2001) [2003] UGSC 16
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Sebei District Administration v Gsayali and others
    [1968] EA 300
  • Jamnadas V. Sodha v. Gordhandas Hemraj
    (1952), 7 U.L.R. 11
  • Rukenya Buuri v M’arimi Minyora & 2 others
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit; application brought under Order 22 Rule 22 and Order 51 Rules 1 and 15 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, "Dickson Opola Okumu v Tom Odhiambo Odari & another [2019] KEELC 1286 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1286/eng@2019-10-25

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