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ELCPartially AllowedNot stated in judgment· [2020] KEELC 2269 (KLR)

Anthony Kiprop (suing as the legal representative of the Estate of Luka Kiprop Kiptai) v Sylvester Chemweno Sang & 2 others [2020] KEELC 2269 (KLR)

Environment and Land Court (court not expressly named; judgment delivered at Eldoret)
26 May 2020
MOM. A. ODENY
996 words in judgment
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The bottom line

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A Kenyan land court gave a defendant who missed a hearing a second chance, but only after paying Kshs 20,000 costs within 14 days.

What this practically means

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Executive summary

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This ruling by M. A. Odeny J at Eldoret determines an application dated 10th March 2020 by the 1st defendant, filed under certificate of urgency before a judgment scheduled for 16th April 2020. The applicant sought suspension of judgment, setting aside of ex parte proceedings of 4th February 2020, and a rehearing de novo, contending that his counsel was never served with a hearing notice and only learnt of the hearing upon being served with the plaintiff's submissions. The plaintiff opposed, annexing an affidavit of service with a stamped hearing notice acknowledging receipt by Mburu Okara & Co Advocates. Framing three issues - sufficiency of explanation for non-attendance, delay, and prejudice - the court applied Order 12 Rules 2(a) and 7 of the Civil Procedure Rules. It found service was properly effected, as the notice was served and stamped by the applicant's advocates, and that counsel might simply have forgotten to attend. Nevertheless, applying Muthaiga Road Trust Company Ltd v Five Continents Stationers Ltd & 25 Others (2003) KLR 714, the court held that the concern in setting-aside applications is to do justice between the parties without fettering the wide statutory discretion. In the interest of justice, the court allowed the 1st defendant an opportunity to cross-examine the plaintiff and present his case, on condition that he pay thrown away costs of Kshs. 20,000/- to the plaintiff within 14 days, failing which the order lapses and judgment will proceed. Costs of the application were made costs in the cause.

Key legal issues

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01

Whether the hearing notice was duly served on the 1st defendant

Holding

Service was properly effected; the applicant's advocate stamped the hearing notice acknowledging receipt

Reasoning

The affidavit of service filed on 30th January 2020 annexed a hearing notice dated 30th October 2019 showing the notice was served and stamped by Mburu Okara & Co Advocates. The court therefore found the reason of non-service unconvincing, observing counsel might simply have forgotten to attend.

p. 2
02

Whether ex parte proceedings should nonetheless be set aside in the interest of justice

Holding

Yes - the 1st defendant was given an opportunity to cross-examine the plaintiff and present his case on conditions

Reasoning

Although service was proper, the court held that the overriding concern is to do justice between the parties and not to fetter the wide statutory discretion. The applicant swore an affidavit explaining non-attendance, so shutting him out would be unjust; the setting aside was conditioned on thrown away costs of Kshs. 20,000/- payable within 14 days.

p. 2

Legal principles established

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  • Where a hearing notice was properly served and the suit called on for hearing, the court may proceed ex parte against an absent defendant.
  • The discretion to set aside ex parte proceedings must be exercised judiciously so as not to cause injustice to any party.

Court orders

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  1. 1.The 1st defendant be given an opportunity to cross-examine the plaintiff and present his case (proceedings of 4th February 2020 set aside for that purpose)
  2. 2.The applicant to pay thrown away costs of Kshs. 20,000/- to the plaintiff within 14 days, failing which the order lapses and the court shall proceed with writing and delivery of judgment
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 2(a)
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (1)

  • Muthaiga Road Trust Company Ltd Vs Five Continents Stationers Ltd & 25 Others
    (2003) KLR 714
Jurisdiction invoked
Order 12 Rules 2(a) and 7 of the Civil Procedure Rules (discretion to set aside ex parte proceedings)

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, "Anthony Kiprop (suing as the legal representative of the Estate of Luka Kiprop Kiptai) v Sylvester Chemweno Sang & 2 others [2020] KEELC 2269 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2269/eng@2020-05-26

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