Ewoton Leonard Ekutian & another v Michael Kore Rotich & 5 others [2019] KEELC 1917 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants satisfied the conditions for setting aside the judgment entered after the defence case was deemed closed
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.
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.
Which procedural provision governed the application
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.
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.
Legal principles established
#- 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
#- 1.Dismissal of the application dated 25/3/2019
- 2.Costs of the application awarded to the plaintiffs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.