Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2020] KEELC 1786 (KLR)

Damon Abudho Agola v Anjelina Otieno Ojwang & another [2020] KEELC 1786 (KLR)

Environment and Land Court
10 June 2020
GOG. M. A. Ongondo
1,262 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

#

Kenya's Environment and Land Court refused to reopen a land case, ruling the defendants were served but deliberately skipped court and delayed over a year.

What this practically means

#

Executive summary

#
The first and second defendants, Anjelina Atieno Ojwang and Henok Onyango Ojwang, moved the Environment and Land Court at Migori by Notice of Motion dated 20th February 2020 under Order 51 Rule 1 of the Civil Procedure Rules and Sections 3A and 3 of the Civil Procedure Act, seeking to set aside the court's judgment of 15th February 2018, reopen the parties' cases, and revert the title to LR. No. KABONDO/KAKANGUTU EAST/1596 to the second defendant pending retrial. They alleged non-service of mention, hearing and judgment notices, false affidavits by the respondent's process, and prejudice from being condemned unheard. The plaintiff, Damon Abudho Agola, opposed through a replying affidavit, asserting that the applicants were duly served throughout and had not shown grounds for setting aside a judgment already rendered in his favour. The court directed written submissions, which neither party filed, and proceeded to determine the application on the record in the spirit of Article 159(2)(b). Relying on Shah v Mbogo, Patel v Highway Carriers, Reliance Bank v Norlake Investments and Mwangi v Mwangi, the court held that the discretion to set aside an ex-parte judgment exists to relieve against accident, inadvertence or excusable error, not to delay justice. Finding the applicants were duly served and deliberately failed to defend the suit, and that the application was brought after more than a year's inordinate delay, the court dismissed the application with costs to the respondent on 10th June 2020.

Key legal issues

#
01

Whether the defendants established grounds to set aside the judgment and reopen the case

Holding

The application failed: the applicants were served, deliberately did not defend the suit, and brought the application after more than a year's inordinate delay

Reasoning

The court found the applicants were duly served and deliberately failed to defend the suit, offering no reasons for that failure. The application was filed more than a year after judgment. While Article 50(1) guarantees a fair hearing, the applicants were granted that latitude and neglected to appear. Balancing the parties' interests and the imperative that justice not be delayed, the court declined to exercise its discretion in their favour and dismissed the application with costs.

p. 2

Legal principles established

#
  • The court's discretion to set aside an ex-parte judgment is exercised to avoid injustice from accident, inadvertence or excusable error, and not to delay justice

Court orders

#
  1. 1.The Notice of Motion dated 20th February 2019 and filed on 21st February 2019 is dismissed with costs to the respondent

Authorities

#

Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 3A and Section 3
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 51 Rule 16
  • Constitution of Kenya, 2010Articles 50(1), 159(2)(b) and (d), 7(3)(b), 25(c)
  • Environment and Land Court Act, 2015Sections 3 and 19
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33(a) and (b)

Cases cited (5)

  • Patel –vs- Highway Carriers Limited
    (1986) LLR 258 (COA)
  • Films Role International Ltd v Cannon Film Sales Ltd
    (1986) ALL ER 772
  • Shah v Mbogo
    (1968) EA 693
  • Reliance Bank-vs-Norlake Investments Ltd
    (2002) 1 EA 227
  • Mwangi and another-s- Mwangi
    (1986) KLR 328
Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules and Sections 3A and 3 of the Civil Procedure Act; Sections 3 and 19 of the Environment and Land Court Act, 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Damon Abudho Agola v Anjelina Otieno Ojwang & another [2020] KEELC 1786 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1786/eng@2020-06-10

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