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ELCOtherNot stated in the judgment extract· [2019] KEELC 2437 (KLR)

Elizabeth Savala v Hezekiah Kirahi Liyosi & another [2019] KEELC 2437 (KLR)

Environment and Land Court
26 June 2019
NMN.A. Matheka
924 words in judgment
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The bottom line

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A Kenyan land judgment was thrown out because the winning side's lawyer didn't tell the court the other lawyer couldn't attend.

What this practically means

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Executive summary

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The court dealt with two competing applications arising from a land dispute over L.P. Nyang'ori/Banja/1039, which had been determined by judgment delivered on 20th November 2018 following proceedings taken on 24th September 2018. The defendant applied on 10th April 2019 under sections 1A, 1B and 63(e) of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010 for stay of proceedings and setting aside of the proceedings and judgment, with rehearing de novo, on the grounds that the hearing date was taken ex parte by plaintiff's counsel without consultation, that the served hearing notice was endorsed to show defence counsel Mr. Onsongo was engaged in Kericho ELC Case No. 119 of 2007 (Kiplagant Bartegan v Eunice Nyasuguta Makori), that no directions under Order 37 rules 16 and 18 had been given, and that the defendant had a plausible defence. The plaintiff countered with an application of 25th April 2019 under Articles 50(1) and 159(2)(d) of the Constitution seeking to have the Deputy Registrar execute transfer documents pursuant to the decree. Perusing the file, N.A. Matheka J found that plaintiff's counsel had failed to inform the court that the hearing notice was received under protest and that defence counsel was unavailable. Holding that it is in the interest of justice, under the Constitution and natural justice, that the defendant be heard so a merits-based decision can be made, the court allowed the defendant's application as prayed, with costs in the cause, and dismissed the plaintiff's enforcement application with costs. The effect is that the proceedings of 24/9/2018 and the judgment of 20/11/2018 stand set aside and the suit proceeds de novo.

Key legal issues

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01

Whether proceedings and judgment should be set aside where the hearing date was taken without regard to counsel's known unavailability

Holding

The court set aside the proceedings of 24/9/2018 and the judgment of 20/11/2018 and allowed the suit to proceed de novo, holding that the plaintiff's counsel failed to inform the court that the hearing notice was received under protest and that defence counsel was engaged elsewhere.

Reasoning

The court perused the file and confirmed that the served hearing notice for 24/9/2018 was endorsed to show that Mr. Onsongo, who had conduct of the defence, would be engaged in Kericho ELC Case No. 119 of 2007. Plaintiff's counsel, as an officer of the court, ought to have brought this to the court's attention. Fair hearing under Article 50(1), Article 159 and natural justice required that the defendant be heard on the merits rather than be bound by a judgment entered at a hearing he could not attend.

p. 2
02

Whether the plaintiff could enforce the decree of 20/11/2018 by having the Deputy Registrar execute transfer documents

Holding

The application dated 25th April 2019 was dismissed with costs because the judgment and decree it sought to enforce had been set aside.

Reasoning

Having allowed the defendant's application to set aside the proceedings and judgment, the court could not authorise the Deputy Registrar to sign transfer documents pursuant to a decree that no longer stood. The suit was to be heard de novo, and the enforcement application premised on the decree of 20th November 2018 consequently fell away and was dismissed with costs.

p. 3

Legal principles established

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  • Counsel who serves a hearing notice that has been received under protest and marked to indicate counsel's unavailability is under a duty to bring that fact to the attention of the court
  • It is in the interest of justice, under the Constitution and the rules of natural justice, that a party be accorded a chance of being heard so that a decision is made on the merits

Court orders

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  1. 1.The defendant's application dated 10th April 2019 granted as prayed
  2. 2.Costs of the 10th April 2019 application to be in the cause
  3. 3.The plaintiff's application dated 25th April 2019 dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)sections 1A, 1B, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 37 rules 7, 16 and 18
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • Kiplagant Bartegan vs. Eunice Nyasuguta Makori
    Kericho Environment and Land Court Case No. 119 of 2007
Jurisdiction invoked
Original civil jurisdiction; applications brought under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap 21), Order 12 Rule 7 and Order 37 rules 7, 16 and 18 of the Civil Procedure Rules, 2010, and Articles 50(1) and 159(2)(d) of the Constitution of Kenya

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, "Elizabeth Savala v Hezekiah Kirahi Liyosi & another [2019] KEELC 2437 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2437/eng@2019-06-26

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