Safaricom Limited v Josenga Company Limited & 4 others [2021] KEELC 281 (KLR)
The bottom line
#A Kenyan land court reopened a defendant's case after her lawyer missed hearings, but she paid KShs 20,000 for the delay.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause for setting aside ex parte proceedings
The 2nd Defendant established sufficient cause: her advocates failed to notify her of or attend the hearings of 25th May 2021 and 16th June 2021.
The court applied the Shah v Mbogo threshold that discretion to set aside exists to avoid injustice from accident, inadvertence or excusable mistake. The Applicant's non-attendance was attributable to her advocates, not to herself. The court noted the mutual obligations of litigant and advocate, finding inadvertence by counsel plausible and excusable, and held the explanation rational and without unexplained gaps.
Right to fair hearing under Article 50(1)
The right to a fair hearing is a principle of natural justice, non-derogable under Article 25, and applies to civil trials including the right to adduce and challenge evidence.
Relying on Pinnacle Projects Limited v Presbyterian Church of East Africa, the court held that fair trial in civil cases includes access to court, equality of arms, and the right to adduce and challenge evidence. The court declined to condemn the Applicant unheard and exercised its discretion in her favour to protect that right.
Inordinate delay in filing the application
The approximately three months between 6th June 2021 and 31st August 2021 was not inordinate delay.
Applying UTALII Transport, the court held that 'inordinate' is not to be construed in its dictionary meaning but contextually. The Applicant needed time to instruct a new advocate who had to peruse the file before advising and filing the application. The three-month period was therefore excusable in the circumstances of the case.
Compensability of the Respondents' loss
Any loss occasioned to the Respondents by the delay in concluding the main suit can be compensated by way of damages.
The court acknowledged the prejudice to the Respondents, particularly the delay in concluding the main suit, but having found no inordinate delay and having found sufficient cause, it held that the loss was compensable by damages, balancing the parties' interests in the exercise of its discretion.
Legal principles established
#- The discretion to set aside ex parte proceedings is to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist one who has deliberately obstructed or delayed the course of justice.
- A litigant should not be condemned unheard; the right to a fair hearing under Article 50(1) applies to civil cases and cannot be limited or derogated from under Article 25.
- What constitutes inordinate delay depends on the circumstances of each case; 'inordinate' should not be taken in its ordinary dictionary meaning but as excessive compared to normality.
- A mistake of counsel may be excused where it affords a justiciable, expeditious and holistic disposal of the matter, though the exercise of discretion is not automatic.
Court orders
#- 1.Reopening of the 1st, 3rd and 4th Defendants' cases for cross-examination by the 2nd Defendant/Applicant of the witnesses who testified on 25th May 2021 and 16th June 2021
- 2.Reopening of the 2nd Defendant's/Applicant's case to allow her to testify, tender her evidence and call her witnesses
- 3.Setting aside of the proceedings of 26th May 2021 and 16th June 2021
- 4.2nd Defendant/Applicant condemned to pay throw away costs of KShs 20,000 to the Plaintiff/Respondent before the next hearing date
- Jurisdiction invoked
- Articles 48, 50, 159(2)(d) of the Constitution; Section 3A and 63(e) of the Civil Procedure Act; Order 18 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules (2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safaricom Limited v Josenga Company Limited & 4 others [2021] KEELC 281 (KLR)", Case Analysis (2021). Notice of Motion dated 31st August 2021 (Murang'a ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/281/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.