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ELCAllowedNot stated· [2019] KEELC 3317 (KLR)

Patrick Lokwanga & 4 others Sued in their personal capacity and on behalf of Karel Clan v Joseph Cheboi & 5 others Sued in their personal capacity and on behalf of Kamoi Clan [2019] KEELC 3317 (KLR)

High Court of Kenya (presumed, Environment and Land Division)
9 May 2019
MOM.A. Odeny
238 words in judgment
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The bottom line

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A Kenyan High Court set aside ex parte stay-of-execution orders after a party claimed it was never served, ordering the application to be heard with both sides present.

What this practically means

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Executive summary

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This short ruling by M.A. Odeny, J, delivered at Eldoret on 9 May 2019, dealt with an application dated 16 April 2018 by the Plaintiff/Applicant seeking that the entire proceedings and the orders made on 3 April 2018 be set aside, and that the Notice of Motion dated 8 February 2018 be fixed for hearing. The background was that the matter had been placed before Justice Ombwayo under certificate of urgency during the court vacation, and a hearing date of 3 April 2018 was given, with the Applicant ordered to serve the application by close of business that day. On the hearing date counsel for the plaintiff was absent, and the court proceeded to hear the application ex parte after counsel filed an affidavit of service, granting an order of stay of execution on condition of a deposit of security. The Plaintiff/Applicant was dissatisfied on the ground that it was never served. Having considered the submissions of both counsel and the circumstances under which the orders were granted, the judge allowed the application in the sense sought: the ex parte order was set aside and the application for stay was directed to be fixed for hearing inter partes. The ruling was read in open court in the presence of Miss Wahome for the Plaintiff/Applicant and Mr Kiboi for the Defendant/Respondent, with Mr Mwelem as court clerk. No costs order was recorded.

Key legal issues

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01

Whether the ex parte stay of execution orders issued on 3/4/2018 should be set aside on the ground of non-service

Holding

The court set aside the ex parte orders and directed that the underlying stay application be heard inter partes.

Reasoning

The application for stay was heard ex parte on 3/4/2018 after the plaintiff's counsel was absent, even though an affidavit of service had been filed in court. The plaintiff asserted it was never served. The judge, considering the submissions of both counsel and the circumstances in which the orders were granted, concluded that the interests of justice required the ex parte order to be set aside and the stay application to be fixed for full hearing.

p. 2

Legal principles established

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  • Ex parte orders obtained where a party claims non-service, with no affidavit of service effectively brought to the party's attention, may be set aside so the application can be heard inter partes.

Court orders

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  1. 1.The ex parte order of 3/4/2018 (order of stay of execution granted ex parte) is set aside
  2. 2.The application for stay of execution (Notice of Motion dated 8/2/2018) to be fixed for hearing inter partes
Jurisdiction invoked
Not stated in the excerpt (inherent powers and civil procedure to set aside ex parte orders)

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, "Patrick Lokwanga & 4 others Sued in their personal capacity and on behalf of Karel Clan v Joseph Cheboi & 5 others Sued in their personal capacity and on behalf of Kamoi Clan [2019] KEELC 3317 (KLR)", Case Analysis (2019). Not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3317/eng@2019-05-09

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