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 Allowed· [2020] KEELC 1865 (KLR)

John Wefwafwa Mbakaya v Moses Wasike Wabomba (Substituted by Judith Muyoka Wabomba) [2020] KEELC 1865 (KLR)

Environment and Land Court
1 July 2020
BOBoaz N. Olao
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court reopened a defence case closed after a lawyer's scheduling mistake, but refused to restart the whole trial and made the lawyer personally pay the costs.

What this practically means

#

Executive summary

#
This is a ruling by Boaz N. Olao J of the Environment and Land Court, Bungoma, on the defendant's Notice of Motion dated 27th February 2020 in a land suit filed on 14th July 2003. The plaintiff closed his case on 11th July 2018 after earlier testimony before Muchemi J. The defence case, fixed by consent for 20th February 2020, did not proceed because neither the defendant nor her counsel, Mr Kituyi, attended; the defence was marked closed. Counsel attributed the non-attendance to a clerk, Electine, who failed to diarise the hearing date before proceeding on maternity leave. The defendant, a widow whose livelihood is the suit land, sought setting aside of the proceedings and a trial de novo. The court exercised its discretion judiciously, balancing the Article 50 right to a fair hearing against the overriding objective of expeditious disposal in a case already 17 years old. Accepting the unrebuted explanation of an excusable clerical mistake, and distinguishing the Gideon Mose Onchwati authority relied on by the plaintiff, the court set aside the orders of 20th February 2020 closing the defence case. However, it declined the request for a de novo trial, holding it would be a travesty to require the plaintiff to testify again; the hearing continues from where it had reached, with the defence to be heard and closed on 13th July 2020 by video link. Because the mistake originated in counsel's office, Mr Kituyi was ordered to personally pay the costs of the application, assessed at Kshs. 10,000/=, before the next hearing date.

Key legal issues

#
01

Whether non-attendance caused by a clerk's failure to diarise a consent hearing date constitutes excusable mistake warranting setting aside of ex parte closure of the defence case

Holding

Yes. The failure to attend was not deliberate; it was an explained mistake in counsel's office, and denying the defendant a hearing would be unjust.

Reasoning

The court weighed the 17-year pendency and the consent date against the unrebuted explanation that a clerk failed to diarise the date and went on maternity leave. Relying on CMC Holdings and Chemwolo, the court held discretion exists to cure excusable mistakes and that the defendant, having filed a defence she wishes to prosecute, should not be shut out.

p. 2
02

Whether the trial should restart de novo

Holding

No. The case continues from where it had reached as agreed on 11th July 2018.

Reasoning

The plaintiff testified on 1st November 2010 and was cross-examined at length; parties had already agreed on 11th July 2018 that the matter proceeds from where it had reached. Requiring the plaintiff to testify afresh would be a travesty of justice. The setting-aside remedy extends only to reopening the defence case.

p. 3
03

Whether the Gideon Mose Onchwati decision was applicable

Holding

Distinguished. In that case there was no excusable mistake and the defendant had intimated it would adduce no evidence; here an explained clerical error and a subsisting defence exist.

Reasoning

Aburili J had dismissed that application because there was no evidence of counsel's lapse and the defendant had said it would not adduce evidence. Here the defendant's clerical failure was unrebuted and she has a defence to prosecute, making the authority distinguishable.

p. 2

Legal principles established

#
  • The discretion to set aside ex parte orders must be exercised judiciously and upon reasons, balancing the fair-hearing guarantee against the overriding objective of expeditious disposal
  • A clerical mistake by counsel's office explaining non-attendance may justify setting aside, and the erring counsel may be personally burdened with costs

Court orders

#
  1. 1.The orders of 20th February 2020 marking the defendant's case as closed are set aside
  2. 2.The hearing shall not commence de novo but shall continue from where it had reached
  3. 3.The defence shall be HEARD and CLOSED on 13th July 2020 by video link
  4. 4.MR KITUYI shall personally meet the costs of the application assessed at Kshs. 10,000/= payable before the next hearing date

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 50 (fair hearing)

Cases cited (4)

  • CMC HOLDINGS LTD .V. NZIOKI
    2004 1 KLR 173
  • PHILIP CHEMWOLO & ANOTHER .V. AUGUSTINE KUBENDE
    1986 KLR 492
  • GIDEON MOSE ONCHWATI .V. KENYA OIL CO LTD & ANOTHER
    2017 eKLR
  • MOSES LUMBASI SIMIYU .V. JOHN KIPTOO NGEIYWO
    2020 eKLR
Jurisdiction invoked
Original civil jurisdiction over a part-heard land suit; discretion to set aside ex parte orders (Court's inherent/underlying procedural discretion; Article 50 fair hearing invoked)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Wefwafwa Mbakaya v Moses Wasike Wabomba (Substituted by Judith Muyoka Wabomba) [2020] KEELC 1865 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1865/eng@2020-07-01

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