Republic v Deputy Commissioner Kibwezi Sub-County & another Ex Parte Salim Mohammed Salim & 6 others; Government of Makueni County (Interested Party) [2020] KEELC 2838 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a judgment because stamped pleadings missing from the file were ignored, prioritising a fair hearing over technicalities.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the court to determine the application
The court had jurisdiction, anchored in Sections 80 and 3A of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules, 2010
The application was expressed to be brought under Sections 80, 1A, 1B and 3A of the Civil Procedure Act as well as Order 10 Rules 11 and 53 of the Civil Procedure Rules, 2010. Counsel cited the inherent power provision, Section 3A, and Order 10 Rule 11 on setting aside judgments. No contrary submission was made on jurisdiction and the court exercised its discretion on the merits without further jurisdictional analysis.
Whether the Respondents' pleadings were filed and whether their absence from the file was excusable
The Respondents did file their replying affidavit and submissions, as both bore the court's receiving stamp; their absence from the court file at the time of judgment was attributable to the transition challenges of the newly established ELC station, and the judgment ought not to have been written without regard to them
The court examined the replying affidavit filed 11th October 2017 and submissions filed 14th December 2017 and found both bore the receiving stamp of the court. It held it imprudent to accuse the Respondents of sneaking pleadings into the file, given the transition challenges faced by the ELC at Makueni after its establishment. Being satisfied this was a suitable case, the court exercised its discretion in favour of setting aside the judgment so the Respondents' evidence could be considered on the merits.
Whether the discretion to set aside the judgment should be exercised in favour of the Respondents/Applicants
Yes; the judgment of 16th July 2018 was set aside so the matter could be determined on merit, with each party bearing its own costs given shared blame
Guided by Article 159(2)(d) on substantive justice, and the principles in the cited authorities that the discretion to set aside an ex-parte judgment is free and aimed at doing justice, the court found the Respondents' filed pleadings should have been considered. It declined to shut a party out from a hearing, held the delay excusable in the circumstances, and balanced the blame of both sides in the costs order.
Legal principles established
#- Setting aside an ex-parte judgement is a matter of judicial discretion exercised in the interest of substantive justice, guided by Article 159(2)(d) of the Constitution
- Where pleadings bear the court's receiving stamp, the court ought to have considered them before delivering judgment even if they were not in the court file
Court orders
#- 1.The judgement delivered on 16th July 2018 is set aside in terms of prayer 2 of the Notice of Motion dated 12th July 2019
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Sections 80, 1A, 1B and 3A of the Civil Procedure Act and Order 10 Rules 11 and 53 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Deputy Commissioner Kibwezi Sub-County & another Ex Parte Salim Mohammed Salim & 6 others; Government of Makueni County (Interested Party) [2020] KEELC 2838 (KLR)", Case Analysis (2020). JR No. 7 of 2017 (formerly Machakos Miscellaneous Civil Application JR No. 162 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2838/eng@2020-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.