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ELCAllowed· [2020] KEELC 590 (KLR)

Nehemiah Ochiengi Mogusu v Mwihaki Mbogo [2020] KEELC 590 (KLR)

Environment and Land Court
19 November 2020
SOS. OKONG'O
1,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside injunction orders issued after a lawyer missed a virtual hearing, confirming parties deserve to be heard before eviction-type orders.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 31st May 2020 seeking, inter alia, a temporary injunction against the defendant over L.R No. Dagoretti/Riruta/S.954, alleging that the defendant had forcefully entered the property and was collecting rent from tenants. On 22nd September 2020, the defendant's advocates, though served, failed to appear at a virtual hearing and had not filed a response; the court granted the injunction in terms of prayer 3, restraining the defendant from entering, collecting rent from, or interfering with the plaintiff's possession of the suit property. The defendant then moved by Notice of Motion dated 24th September 2020 seeking to set aside those orders, contending that she had occupied the property since the 1970s, had constructed the rental houses herself, and that her advocate's failure to attend the virtual session was due to technical challenges; her advocate swore that she had been investigating the root of the plaintiff's title purportedly acquired from Seventh Day Adventist Church (E.A) Limited and had attempted, unsuccessfully, to join the virtual session. The plaintiff opposed, asserting he was a bona fide purchaser for value with a registered title and a certificate of lease which, he argued, could not be overridden by the defendant's alleged letter of allotment, and characterised the application as an abuse of process arising from the defendant's indolence. Ruling on 19th November 2020, the court applied Order 51 Rule 15 of the Civil Procedure Rules and the principles in Shah v Mbogo and Patriotic Guards Ltd v Sambu, held that the discretion must be exercised judiciously, found the non-appearance attributable to circumstances beyond the advocate's control, noted the orders would effectively evict the defendant before trial, and allowed the application in terms of prayers 3 and 4, setting aside the ex parte orders, with costs in the cause.

Key legal issues

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Whether the ex parte orders of 22nd September 2020 should be set aside

Holding

The application was allowed; the defendant demonstrated a sufficient reason for her advocate's non-appearance and an arguable defence, and the orders were highly prejudicial as they effectively evicted her before the hearing of the suit.

Reasoning

Applying Shah v Mbogo and Patriotic Guards Ltd v James Kipchirchir Sambu, the court held that discretion must be exercised judiciously to do real and substantial justice. The defendant instructed an advocate promptly, the advocate took steps to investigate the root of the plaintiff's title, attempted to join the virtual court session, and failed due to technical challenges beyond her control. The ex parte orders had the effect of evicting the defendant before the suit was heard, which was prejudicial, and justice demanded she be heard.

p. 2

Legal principles established

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  • A court's discretionary powers must be exercised judiciously and not capriciously.
  • The discretion to set aside ex parte orders exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction.

Court orders

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  1. 1.The defendant's Notice of Motion dated 24th September 2020 is allowed in terms of prayers 3 and 4 thereof, setting aside the ex parte orders made on 22nd September 2020
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 15

Cases cited (2)

  • Patriotic Guards Ltd. v James Kipchirchir Sambu
    [2018]eKLR
  • Shah v Mbogo
    [1967] E.A 116
Jurisdiction invoked
Inherent and discretionary jurisdiction under Order 51 Rule 15 of the Civil Procedure Rules 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, "Nehemiah Ochiengi Mogusu v Mwihaki Mbogo [2020] KEELC 590 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/590/eng@2020-11-19

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