Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (arising from Civil Suit No. 72 of 2005)· [2020] KEELC 3253 (KLR)

Douglas Onyango Olak & 2 others v DOO & another [2020] KEELC 3253 (KLR)

Environment and Land Court
6 March 2020
AOA.O. Ombewayo
1,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court set aside a default judgment because a defendant's lawyer was ill and the defendant had a genuine defence worth hearing.

What this practically means

#

Executive summary

#
The Defendant applied, under a certificate of urgency, to set aside an ex-parte judgment entered against him on 17th July 2019 in Civil Suit No. 72 of 2005 and to reinstate the suit for inter-parties hearing. He explained that he had instructed advocates who filed and amended a defence, but his former Advocate, Mr Kopot, failed to notify him of the hearing dates, having been ailing for two years and not actively in practice; he learned of the decree only when his tenants were served. The Plaintiffs opposed, asserting that no ex-parte judgment had been issued and that both parties participated in the trial. The court framed two issues: the conditions for setting aside an ex-parte judgment, and whether sufficient cause had been demonstrated. Relying on Order 12 Rule 7 of the Civil Procedure Rules and authority including Samson Karino Ole Nampaso, Shah v Mbogo, Philip Ongom, Wachira Karani and Sebei District Administration, the court held that the discretion is exercised judicially to avoid injustice; the applicant must show either improper service or sufficient cause for non-attendance, plus a defence raising triable issues. Finding the Advocate's illness a plausible reason and triable issues raised in the defence, the court allowed the application, set aside the judgment and awarded the Plaintiffs costs in any event. Judgment was dated and delivered on 6th March 2020 by A.O. Ombewayo J.

Key legal issues

#
01

Conditions for setting aside an ex-parte judgment

Holding

The court has discretion under Order 12 Rule 7 to set aside or vary a judgment on such terms as may be just; the application fulfils the conditions if the defendant was not properly served or failed to appear due to sufficient cause, and has a defence raising a triable issue.

Reasoning

The court adopted the principles in Samson Karino Ole Nampaso, drawing on Shah v Mbogo, that the discretion is exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake. It also adopted the Ugandan Supreme Court's two-condition test (proper service or sufficient cause) and Mativo J's elaboration that sufficient cause is a question of fact. It noted that denying a subject a hearing should be the last resort of a court.

p. 2
02

Whether the Defendant demonstrated sufficient cause for setting aside the judgment

Holding

Yes. The illness of the Defendant's former Advocate, Mr Kopot, which caused non-attendance at the defence hearing, was a plausible explanation, and the Defendant's statement of defence and amended defence raised triable issues deserving trial on merit.

Reasoning

The court found from the record that the matter had been stood over generally on several occasions because the Defendant's former Advocate was ailing, corroborating the Defendant's explanation. Since the reason for non-attendance was plausible and triable issues had been raised in the pleadings, the discretion was exercised in the Defendant's favour, subject to costs to the Plaintiffs.

p. 3

Legal principles established

#
  • Setting aside an ex-parte judgment is a matter within the court's discretion, to be exercised judicially and judiciously to avoid injustice, and where the defendant shows sufficient cause and a defence raising triable issues, the defence should be allowed to be ventilated on merit.
  • Sufficient cause is a question of fact depending on the circumstances of each case; there is no straight-jacket formula.

Court orders

#
  1. 1.The application is allowed
  2. 2.The ex-parte judgment entered against the Defendant is set aside
  3. 3.The Plaintiffs are awarded costs in any event

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (7)

  • Samson Karino Ole Nampaso v Kaana Ka Arume Co. Ltd
    [2016] eKLR
  • Shah v Mbogo & Another
    [1967] EA 116
  • Mbogo v Shah
    [1968] EA 93
  • Philip Ongom, Capt v Catherine Nyero Owota
    (Civil Appeal No. 14 of 2001) [2003] UGSC 16
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Sebei District Administration v Gsayali and others
    [1968] EA 300
  • Jamnadas V. Sodha v. Gordhandas Hemraj
    (1952), 7 U.L.R. at p. 11
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules - discretion to set aside or vary judgment entered in a suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Douglas Onyango Olak & 2 others v DOO & another [2020] KEELC 3253 (KLR)", Case Analysis (2020). Not stated in judgment (arising from Civil Suit No. 72 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3253/eng@2020-03-06

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