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ELCAllowed· [2020] KEELC 3775 (KLR)

Lavender Sigar (Suing on his own behalf as the legal representative of the Deceased’s estate) and 21 Others v Edwin Omolo Ong’ong’a Sigar (Sued as the legal representative of Wilson Ong’ong’a, the Trustee of the estate of the late James Sigar Omollo) [2020] KEELC 3775 (KLR)

Environment and Land Court
6 February 2020
1,092 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court set aside a suit dismissal caused by an advocate's mistake, confirming clients should not pay for their lawyer's errors.

What this practically means

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Executive summary

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The Applicants moved the Environment and Land Court by an application dated 7th February 2019 seeking to set aside an order of 23rd January 2019 dismissing their suit (and the application dated 19th September 2018) for non-attendance, and to have the application reinstated to proceed to its natural conclusion. They explained that their counsel was engaged before Justice Ochieng in the High Court on another matter and arrived after the suit had been called out and dismissed, that the failure to attend was not deliberate, and that they should not be punished for their advocate's mistakes. The Respondent opposed, arguing the application was incompetent, frivolous and vexatious, and that no prejudice would ensue. The court framed two issues: the principles for setting aside ex-parte orders under Order 12 Rule 7, and whether an advocate's mistake constitutes sufficient cause. Applying CMC Holdings v Nzioki, Samson Karino Ole Nampaso, Phillip Chemwolo v Kubede and Lucy Bosire, and guided by the overriding objective in Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution, the court held that the Applicants had shown sufficient cause, acted without inordinate delay, raised a triable issue (non-service of a hearing notice), and that blunders by counsel should not be visited on clients where remediable by costs and where no prejudice results. The court set aside the dismissal with costs and directed that the application of 19th September 2018 be determined on merit.

Key legal issues

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01

Principles for setting aside ex-parte orders under Order 12 Rule 7

Holding

The applicant must demonstrate sufficient cause, and the court's discretion must be exercised judiciously to avoid injustice from excusable mistake; the court should also consider whether a triable issue exists.

Reasoning

Order 12 Rule 7 requires sufficient cause. Relying on CMC Holdings Limited v Nzioki and Samson Karino Ole Nampaso v Kaana Ka Arume Co. Ltd, the court held the discretion must be exercised judiciously to ensure a litigant does not suffer injustice from an excusable mistake, and that the existence of a triable issue favors ventilation on merit at trial.

p. 2
02

Whether advocate's mistake is sufficient reason to set aside dismissal for non-attendance

Holding

Yes - blunders by counsel should not be visited on the client where remediable by costs and where no prejudice is caused, per the overriding objective.

Reasoning

Guided by the overriding objective in Sections 1A and 1B of the Civil Procedure Act, and Phillip Chemwolo & Another v Augustine Kubede and Lucy Bosire v Kehancha Div Land Dispute Tribunal, the court found applicants' counsel gave sufficient cause for non-attendance, acted without inordinate delay, and the respondent would suffer no prejudice; a triable issue (lack of hearing notice) existed.

p. 2

Legal principles established

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  • Where an advocate's mistake can be remedied with costs and the respondent suffers no prejudice, ex-parte orders ought to be set aside so that the case is determined on its merits.

Court orders

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  1. 1.The orders dismissing the application of 19th September 2018 are set aside with costs
  2. 2.The application of 19th September 2018 to be determined on merit

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (5)

  • Burhani Decorators & Contractors v Morning Foods Ltd & another
    [2014] eKLR
  • CMC Holdings Limited v Nzioki
    [2004] 1 KLR 173
  • Samson Karino Ole Nampaso v Kaana Ka Arume Co. Ltd
    [2016] eKLR
  • Phillip Chemwolo & Another v Augustine Kubede
    [1986] eKLR
  • Lucy Bosire v Kehancha Div Land Dispute Tribunal & 2 others
    [2013] eKLR
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules; Section 1A and 1B 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, "Lavender Sigar (Suing on his own behalf as the legal representative of the Deceased’s estate) and 21 Others v Edwin Omolo Ong’ong’a Sigar (Sued as the legal representative of Wilson Ong’ong’a, the Trustee of the estate of the late James Sigar Omollo) [2020] KEELC 3775 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3775/eng@2020-02-06

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