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)
The bottom line
#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
#Executive summary
#Key legal issues
#Principles for setting aside ex-parte orders under Order 12 Rule 7
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.
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.
Whether advocate's mistake is sufficient reason to set aside dismissal for non-attendance
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.
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.
Legal principles established
#- 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
#- 1.The orders dismissing the application of 19th September 2018 are set aside with costs
- 2.The application of 19th September 2018 to be determined on merit
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules; Section 1A and 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.