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ELCPartially AllowedELC Appl. 27/19 (Mombasa)· [2019] KEELC 2089 (KLR)

Johnson M’mangera Njuki & 8 others v Wellington Sanga & 13 others [2019] KEELC 2089 (KLR)

Environment and Land Court
23 July 2019
CYC.K. Yano
917 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court set aside ex-parte orders because a lawyer missed a hearing due to a genuine case-number mix-up, showing Kenyan courts favour fairness over technicality.

What this practically means

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Executive summary

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The Defendants/Applicants moved the Environment and Land Court at Mombasa by Notice of Motion dated 21st March 2019, brought under Order 40 Rule 7, Order 51 Rule 15 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside ex-parte orders issued after their Advocate failed to appear when the Plaintiff's Application dated 20th February 2019 was called out on 18th March 2019 before Hon. C. Yano. They explained that their Advocate travelled from Nairobi and was attending the wrong court, misled by two cause-listed matters with almost similar numbers (ELC Appl. 27/18 and ELC 27/19), and was thus condemned unheard. The Plaintiffs filed grounds of opposition, contending that the application lacked merit, was made in bad faith and was an abuse of process. Framing the sole issue as whether the application met the threshold for setting aside ex-parte orders, the court applied Patel v E.A. Cargo Handling Services Ltd and Shah v Mbogoh, holding that the discretion to set aside such orders is broad, exists to do justice, and is exercised to relieve against accident, inadvertence or excusable mistake, not deliberate obstruction. Finding the explanation genuine and reasonable and no prejudice to the Plaintiffs, the court allowed the application in terms of prayers 2 and 3, set aside the orders of 18th March 2019, directed the Defendants to file and serve a response within 14 days, kept the interim orders of 26th February 2019 in force pending inter partes hearing, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the Defendants' non-attendance on 18th March 2019 warranted setting aside the ex-parte orders

Holding

Yes - the explanation of confusion arising from two cause-listed matters with almost similar case numbers was genuine and reasonable, and no prejudice would befall the Plaintiffs.

Reasoning

The court accepted the Defendants' Advocate had travelled from Nairobi and attended court but sat in the wrong court owing to confusion between ELC Appl. 27/18 and ELC 27/19. Applying Patel v EA Cargo Handling and Shah v Mbogoh, the wide discretionary power is exercised to do justice and to relieve against excusable mistake. The overriding objective aided the Applicants; the Plaintiffs would suffer no prejudice since the application would still be heard inter partes on merit.

p. 2

Legal principles established

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  • The court's discretion to set aside ex-parte orders is wide and its main concern is to do justice to the parties.
  • The discretion to set aside ex-parte orders is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction.

Court orders

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  1. 1.The ex-parte orders of 18th March 2019 (referred to in the motion as orders of 8th March 2019) set aside
  2. 2.The Defendants' response to be filed and served within 14 days of delivery of the ruling
  3. 3.Interim orders granted on 26th February 2019 to remain in force pending inter partes hearing of the Application dated 20th February 2019
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (2)

  • Patel –v- E. A. Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –v- Mbogoh
    (1967) EA 166
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 7 and Order 51 Rule 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, "Johnson M’mangera Njuki & 8 others v Wellington Sanga & 13 others [2019] KEELC 2089 (KLR)", Case Analysis (2019). ELC Appl. 27/19 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2089/eng@2019-07-23

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