Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (notice of motion dated 16th October 2019)· [2020] KEELC 1532 (KLR)

Peter Wahome Kamwenga v Thomas Amani Kalama & another [2020] KEELC 1532 (KLR)

Environment and Land Court (High Court), Mombasa
30 July 2020
CYC.K. Yano
1,327 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court allowed a party who missed a hearing by accident to rejoin the case, because nobody would be prejudiced.

What this practically means

#

Executive summary

#
This was a ruling on a notice of motion dated 16th October 2019 by the 1st defendant seeking to set aside the proceedings of 23rd September 2019, at which the plaintiff's and defendants' cases were closed in the 1st defendant's absence, and to have the suit reinstated for hearing de novo or, alternatively, to be allowed to cross-examine the plaintiff and the 2nd defendant. The application was brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules. The 1st defendant's counsel, Mr. Kongere, explained that he inadvertently failed to diarize the hearing date while away in Nairobi, and submitted that courts should consider the explanation for default and the presence or absence of prejudice. The plaintiff opposed, contending that the failure was pure carelessness, that judgment was pending, and that the 2nd defendant had died so proceedings against him could not be reopened. Citing Shah v Mbogo, C.K. Yano J held that the court has wide discretion to set aside ex parte orders on just terms, that the discretion exists to remedy inadvertence and excusable mistake rather than deliberate obstruction, and that since judgment had not yet been written and the default was neither intentional nor deliberate, the failure to attend was excusable. The plaintiff had not demonstrated prejudice. The court allowed the application, set aside the orders closing the parties' cases, permitted the 1st defendant to cross-examine the witnesses and tender his evidence, and awarded thrown away costs to the plaintiff.

Key legal issues

#
01

Whether an advocate's failure to diarize a hearing date constitutes an excusable mistake justifying setting aside of proceedings

Holding

Yes. The failure was found to be inadvertent and not deliberate; the advocate had otherwise attended court regularly, and the explanation was sufficient.

Reasoning

The court noted the hearing date was taken in the presence of counsel holding brief for the applicant's advocate, and that the applicant's advocate attended court on all other occasions save the material date. Counsel explained the failure to diarize and his absence in Nairobi. The court found the failure unintentional and excusable, and invoked the overriding objective to allow the case to be heard on the merits, no prejudice being demonstrated by the plaintiff.

p. 2
02

Whether the plaintiff would suffer prejudice from setting aside the closure of the parties' cases

Holding

No prejudice was demonstrated; the effect would be for all parties to be heard and the case determined on merit.

Reasoning

The court observed that judgment had not yet been written and the application was filed promptly, at a mention to confirm filing of submissions. Since the suit had not concluded, setting aside the closure orders would simply allow all parties to be heard. The overriding objective supported this outcome, and thrown away costs were awarded to the plaintiff as a just term.

p. 2

Legal principles established

#
  • The court's discretion to set aside ex parte proceedings is intended to remedy accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
  • Ex parte orders may be set aside on terms that are just; justice favours hearing a case on the merits where the default is excusable and no prejudice is shown

Court orders

#
  1. 1.The notice of motion dated 16th October 2019 is allowed
  2. 2.The orders closing the plaintiff's and the defendants' respective cases made on 23rd September 2019 are set aside
  3. 3.The 1st defendant is allowed to cross-examine the witnesses and to tender his evidence
  4. 4.The 1st defendant will pay thrown away costs to the plaintiff

Authorities

#

Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (3)

  • Philip Keipto Chemwolo & Another –v- Augustine Kubende
    (1986) eKLR
  • Republic 3 Others –v- Joseph Mburu Gitau & 635 Others
    (2015) eKLR
  • Shah –v- Mbogo
    (1967) EA 116
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Wahome Kamwenga v Thomas Amani Kalama & another [2020] KEELC 1532 (KLR)", Case Analysis (2020). Not stated in the judgment (notice of motion dated 16th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1532/eng@2020-07-30

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