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ELCAllowedNot stated in the ruling· [2020] KEELC 2862 (KLR)

Rose Chepkoech Rotich v Elias Kiplagat Busienei [2020] KEELC 2862 (KLR)

Environment and Land Court
7 May 2020
SKS. M. Kibunja
770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside ex parte proceedings, confirming a lawyer's mistake shouldn't cost a client their day in court, though the lawyer personally pays costs.

What this practically means

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Executive summary

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The Defendant, Elias Kiplagat Busienei, brought a Motion dated 3rd October 2019 under Sections 1A, 1B and 3A of the Civil Procedure Act seeking setting aside of ex parte proceedings and orders of 2nd October 2019, with costs. Background: judgment delivered on 26th January 2016 had dismissed the Plaintiff's suit. The Plaintiff later filed a Motion dated 22nd May 2018 seeking, among other things, leave for M/s Morgan Omusundi to come on record and stay of execution pending intended appeal; it was dismissed on 23rd July 2018, reinstated on 31st May 2019, and fixed for hearing on 2nd October 2019. On that date only the Plaintiff's counsel attended, and the court allowed the application in terms of prayer (3) with costs to abide the appeal. The Defendant blamed counsel's failure to diarize the matter and argued a mistake of counsel should not be visited on an innocent litigant and his right to be heard would be prejudiced. The Plaintiff opposed, contending the application was brought under the wrong provisions and that no prejudice would arise since the status quo of the judgment date would not change. Considering affidavit evidence, submissions and superior court decisions cited, and the unrebutted deposition on non-diarization, the court found this a proper case for setting aside the ex parte proceedings so both sides could be heard. It allowed the Motion, set aside the 2nd October 2019 proceedings and order, directed fixing of an inter partes hearing of the 22nd May 2018 Motion, and ordered the Defendant's Counsel to pay the costs of the application to the Plaintiff.

Key legal issues

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01

Whether the ex parte proceedings of 2nd October 2019 should be set aside

Holding

Yes - the defendant made out a reasonable case; counsel's failure to attend was due to failure to diarize, and the defendant should not be denied the right to be heard.

Reasoning

The court considered the Motion grounds, affidavit evidence and submissions. It noted the unrebutted deposition that counsel missed the hearing date because the matter was not diarized, that the mistake was counsel's not the litigant's, and that refusal would prejudice the defendant's right to be heard. Weighing the obligation to do justice, it found setting aside appropriate so both sides could be heard on the Motion of 22nd May 2018.

p. 1

Legal principles established

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  • A mistake of counsel that deprives a litigant of a hearing may be excused in the court's obligation to do justice, justifying setting aside ex parte proceedings.

Court orders

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  1. 1.The exparte proceedings and order of 2nd October, 2019 are set aside and a date for interpartes hearing of the Motion dated 22nd May, 2018 to be fixed
  2. 2.The Defendant's Counsel to meet the costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Rose Chepkoech Rotich v Elias Kiplagat Busienei [2020] KEELC 2862 (KLR)", Case Analysis (2020). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2862/eng@2020-05-07

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