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ELCDismissedNot stated in the judgment (Kitale ELC suit; prior application dated 26/2/2019)· [2019] KEELC 1917 (KLR)

Ewoton Leonard Ekutian & another v Michael Kore Rotich & 5 others [2019] KEELC 1917 (KLR)

Environment and Land Court
18 July 2019
2,445 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court refused to reopen a land judgment because the defendants never explained why they or their lawyer skipped the hearing date.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitale (Mwangi Njoroge, J) determined the defendants/applicants' notice of motion dated 25/3/2019 seeking stay of execution, setting aside of the judgment delivered on 29/1/2019 and all consequential orders, reinstatement of the suit and costs, brought under Order 10 Rule 11, Order 22 Rule 22 and Order 51 Rules 1 and 15 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The plaintiffs opposed, asserting that the defendants and their counsel were present on 20/9/2018 when the plaintiffs' case closed and the defence hearing date of 27/9/2018 was fixed in open court, yet the defendants absented themselves without explanation; they also faulted the defendants' conduct regarding substitution of the original 3rd defendant and their withdrawal of an earlier, unprosecuted application dated 26/2/2019. The court held that Order 10 Rule 11 was inapplicable since a defence had been filed and the matter was set down for hearing, the operative provision being Order 12 Rule 7. Applying the principle that the discretion to set aside judgment is unfettered but requires sufficient cause, the court found the supporting affidavit devoid of grounds: the defendants did not deny being in court when the hearing date was taken, offered no explanation for their own or their advocate's default, and made no attempt to obtain reasons from their former advocate. Relying on Patel v EA Cargo Handling Services, Belinda Murai v Amos Wainaina and Richard Nchapai Leiyangu v IEBC, the court concluded the default bespoke deliberate delay rather than excusable mistake. The application was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether the applicants satisfied the conditions for setting aside the judgment entered after the defence case was deemed closed

Holding

The applicants failed to show sufficient cause; they were present when the hearing date was taken and offered no explanation for their own or their counsel's default, indicating deliberate delay rather than excusable mistake.

Reasoning

The record showed defendants' representation on multiple dates including 20/9/2018 when the defence hearing date was fixed in their presence. The supporting affidavit was devoid of grounds save an unexplained assertion that they were not informed of the hearing date. They made no attempt to obtain reasons from their former advocate. The court concluded no error by applicants or counsel was established and that the application bespoke deliberate delay.

p. 3
02

Which procedural provision governed the application

Holding

Order 10 Rule 11 did not apply since a defence had been filed and the matter was set down for hearing; Order 12 Rule 7 and the inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act were the operative provisions.

Reasoning

The court noted the heading to Order 10 concerns non-appearance, default of defence and failure to serve, none of which described the situation where a defence existed and parties had already participated in the hearing. The application therefore rested on the substantive overriding objectives of the Civil Procedure Act, with the discretion constrained by the requirement of sufficient cause.

p. 2

Legal principles established

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  • The court's power to set aside judgment is unfettered but requires sufficient cause
  • A competent application to set aside must explain both the litigant's and counsel's absence
  • The discretion to set aside ex parte judgment is not available to a party deliberately obstructing or delaying justice

Court orders

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  1. 1.Dismissal of the application dated 25/3/2019
  2. 2.Costs of the application awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 51 Rule 1 and 15
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (10)

  • Karatina Garments -vs- David Nyanarua
    [1976] KLR 2
  • Pithon Waweru Maina -vs- Thuku Mugiria
    [1982-1988] KAR 171
  • Stallion Insurance Co. Ltd -vs- Rosemary Orao
    Kisumu Civil Appeal No. 85 of 1998
  • Jane Cherutich Maswai -vs- Samuel Kiplagat Misoi
    Kitale ELC No. 44 of 2011
  • Patel -vs- EA Cargo Handling Services Ltd
    [1974] EA 76
  • Sammy Maina Versus Stephen Muriuki
    Nairobi Civil Case No. 1079 of 1980
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
  • Belinda Murai & Others -vs- Amos Wainaina
    [1981] eKLR
  • Richard Nchapai Leiyangu -vs- IEBC & 2 Others
  • Philip Chemwolo & Another -vs- Augustine Kubende
    [1982-88] KAR 103
Jurisdiction invoked
Order 10 Rule 11, Order 22 Rule 22, Order 51 Rules 1 and 15 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act (court found the applicable provision to be Order 12 Rule 7)

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, "Ewoton Leonard Ekutian & another v Michael Kore Rotich & 5 others [2019] KEELC 1917 (KLR)", Case Analysis (2019). Not stated in the judgment (Kitale ELC suit; prior application dated 26/2/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1917/eng@2019-07-18

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