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ELCPartially Allowed· [2020] KEELC 323 (KLR)

Joseph Kibaara M’Icuga V M’Chabari Kinoro [2020] KEELC 323 (KLR)

Environment and Land Court
14 December 2020
PNP. M. Njoroge
1,426 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a landowner a second chance after missing his hearing, but made him pay for the missed day.

What this practically means

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Executive summary

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The defendant in an adverse possession suit moved the court by notice of motion dated 22nd October, 2020, expressed to be brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010, seeking a stay of proceedings and the discharge, review, variation or setting aside of ex-parte proceedings and orders made on 14th October, 2020, so that the suit could be heard on merit. The application was supported by an affidavit of his advocate, Murimi Murango, who deponed that he was unaware of the hearing date and had not been served with a hearing notice, and cited the disruption of advocates' diaries by the Covid-19 pandemic. The plaintiff opposed through grounds of opposition, contending that the defendant had serially ignored court directions to comply with Order 11, that the hearing date was fixed by the court in its ruling of 5th May, 2020, and that Order 12 Rule 7 was an improper basis for the relief sought. At the inter-partes hearing, the defendant's counsel apologised and attributed the default to the former advocate's carelessness, while the plaintiff's advocate maintained the application was a delaying tactic. The court held that a litigant remains the owner of his case at all times and that blaming an advocate is not enough; it also agreed that setting aside proceedings cannot be done under Order 12 Rule 7, which applies only where judgment has been entered or a suit dismissed. Nonetheless, in the greater interest of justice, the court allowed the defendant to be heard, but condemned him to pay costs for the advocates, plaintiff and witnesses for the day the suit proceeded in his absence. Prayers 2 and 3 were granted, parties were directed to comply with Order 11 within 30 days, and directions were set for 25th January, 2021.

Key legal issues

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01

Whether setting aside of ex-parte proceedings lies under Order 12 Rule 7 of the Civil Procedure Rules

Holding

It does not; the provision applies only where judgment has been entered or a suit dismissed.

Reasoning

The court agreed with the plaintiff's advocate that Order 12 Rule 7 is confined to cases where judgment has been entered or a suit dismissed. Since the matter had merely proceeded ex-parte and no judgment had been entered, the rule did not avail the applicant. The court nonetheless proceeded on its inherent interest-of-justice powers to set aside the ex-parte proceedings.

p. 3
02

Whether the defendant's negligence in following up his case should bar him from being heard

Holding

No; in the greater interest of justice the defendant was allowed to be heard, but with costs consequences.

Reasoning

The court held that a litigant owns his case and the advocate is only an agent, so the defendant could not escape blame. However, the interest of justice favours all parties being heard. The court balanced this against the inconvenience caused to the plaintiff and the court, and penalised the defendant with costs for the hearing held in his absence while permitting the suit to proceed on merit.

p. 3

Legal principles established

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  • A litigant remains at all times the owner of his case and cannot escape the consequences of his advocate's inaction by blame alone
  • Order 12 Rule 7 of the Civil Procedure Rules applies only where judgment has been entered or a suit has been dismissed, and cannot be used to set aside ex-parte proceedings

Court orders

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  1. 1.Prayers 2 and 3 in the application are granted (stay and setting aside/discharge of the ex-parte proceedings and orders of 14th October, 2020, and the matter to be heard on merit)
  2. 2.The defendant, and the plaintiff if he finds it necessary, to concurrently fully comply with Order 11, CPR within 30 days
  3. 3.Costs for the advocate, the plaintiff and his witnesses for the proceedings of 14th October, 2020 awarded to the plaintiff and to be in the cause
  4. 4.Parties to come to court on 25/1/2021 for directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure Rules, 2010Order 51 Rule 14(1)(c)
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010

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, "Joseph Kibaara M’Icuga V M’Chabari Kinoro [2020] KEELC 323 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/323/eng@2020-12-14

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