Republic v Director of Land Adjudication & Settlement & another; Deborah Ogendi & 3 others (Interested Parties) Ex parte Joseph Gebora Olum [2020] KEELC 656 (KLR)
The bottom line
#The Environment and Land Court in Migori set aside a 2019 judgment because the parties affected were never served, sending the case back for a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Right to fair hearing where a party was allegedly not served with notice of the hearing of the motion dated 15th March 2010
The applicants were entitled to an uncurtailed right to fair hearing; the exparte judgment and consequential orders were set aside for review
Articles 50(1) and 25(c) of the Constitution anchor the right to a fair hearing. Relying on Baiywa v Bach and James Kanyiita Nderitu, the court held that an exparte judgment entered without proof of service should be set aside on terms, and that a mistake should not deny a party a hearing on the merits. Article 159(2)(d) required the court to disregard procedural technicalities and do substantive justice.
Whether review of the exparte judgment was available under Order 45
Review was available, including on the ground of 'any other sufficient reason', and the application was found sound and full of merits
The court noted that review is provided for under Order 45 and bore in mind the conditions, including 'any other sufficient reason'. Citing Kaiza v Kaiza and Waluke v Wetangula, it observed that not every fact qualifies, but a new and important fact not within the applicant's knowledge may. The applicants showed the court had acted in the dark on material matters, including alleged illegality of the underlying decree.
Balancing of interests and discretion of the court in setting aside an exparte judgment
The court exercised its judicious discretion to take the lower risk of injustice by allowing the parties their day in court
Drawing on Kanwal Sanjit Singh Dhiman v Kashavji Jivraji Shah, Reliance Bank Ltd v Norlake Investment Ltd, Mbogo v Shah and Films International Ltd v Cannon Film Sales Ltd, the court held that courts exist to dispense justice, that justice cuts both ways, that a technical judgment is not the best judgment, and that the court should take the lower risk of injustice.
Legal principles established
#- An exparte judgment obtained without proof of service is liable to be set aside so that a party is not condemned unheard
- A mistake made by a party should not deprive that party of a hearing on the merits
- A review application must be clear, specific and grounded on a new and important fact not within the applicant's knowledge or due diligence
Court orders
#- 1.The application dated 27th July 2020 allowed in terms of orders (5) and (6) as sought therein
- 2.The exparte judgment and all consequential orders arising therefrom reviewed/set aside and the motion dated 15th March 2010 to be heard and determined on merit
- 3.Costs thrown away of Kshs. 10,000/= to be borne by the 1st, 2nd, 3rd and 4th applicants
- Jurisdiction invoked
- Articles 40 and 159(2) of the Constitution of Kenya, 2010; section 13 of the Environment and Land Court Act; Order 45 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 63(e) and 81 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Land Adjudication & Settlement & another; Deborah Ogendi & 3 others (Interested Parties) Ex parte Joseph Gebora Olum [2020] KEELC 656 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion dated 27th July 2020) – Migori ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/656/eng@2020-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.