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ELCAllowedNot stated in the judgment· [2021] KEELC 1327 (KLR)

Georfrey Omariba Bosire v Mary Nyaboke Maina & another [2021] KEELC 1327 (KLR)

Environment and Land Court of Kenya
27 October 2021
JOJ.M. ONYANGO
1,197 words in judgment
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The bottom line

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Kenya's Environment and Land Court at Kisii reopened a case closed in a litigant's absence, ruling that an advocate's mistake should not deny anyone a fair hearing.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kisii (J.M. Onyango, J) determined the 1st Defendant's Notice of Motion dated 8th February 2021, brought under Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act, seeking to set aside the ex-parte proceedings of 25th November 2020 whereby the Defendant's case was closed for non-attendance. The Applicant explained her non-attendance on two grounds: bereavement of a relative on the hearing date, and a miscommunication between her advocate, Mr. Anyona Mbunde, and Mr. Magara Advocate, who had been holding the brief after the court disqualified Mr. Mbunde from handling the matter. The Plaintiff opposed, arguing that Mr. Magara swore no affidavit, the bereavement was unproven, and the defence raised no triable issues. The 2nd Respondent took no part. Framing the sole issue as whether the ex-parte proceedings should be set aside, the court applied Patel v E.A Cargo Handling Services Ltd and Augustine Kubende, holding the discretion to set aside ex-parte proceedings is wide and must be exercised judiciously. Although the bereavement explanation lacked sufficient evidence, the advocate-to-advocate miscommunication was excusable, and counsel's blunder should not deny the Defendant a hearing on the merits. No uncompensable prejudice to the Plaintiff was demonstrated. The court granted the application and ordered the Defendant to pay Kshs. 10,000 thrown away costs to the Plaintiff.

Key legal issues

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01

Whether the ex-parte proceedings closing the 1st Defendant's case should be set aside

Holding

Yes. The miscommunication between the two advocates was excusable, no irreparable prejudice was shown, and the Defendant should be heard on the merits, subject to thrown away costs.

Reasoning

The court held the discretion to set aside ex-parte proceedings is wide and must be exercised judiciously. Although the bereavement claim lacked sufficient evidence, the miscommunication between Mr. Anyona Mbunde Advocate and Mr. Magara Advocate was excusable. A blunder by counsel should not shut a party out from a merits hearing, and the Plaintiff showed no prejudice not compensable by costs.

p. 2

Legal principles established

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  • The power to set aside ex-parte proceedings is discretionary and must be exercised judiciously to do justice between the parties.
  • A blunder by a party's advocate should not deny the party a hearing on the merits.

Court orders

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  1. 1.The 1st Defendant/Applicant's Notice of Motion dated 8th February 2021 is granted
  2. 2.The ex-parte proceedings of 25th November 2020 closing the 1st Defendant's case are set aside
  3. 3.The Defendant shall pay Kshs. 10,000 thrown away costs to the Plaintiff/Respondent
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A 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, "Georfrey Omariba Bosire v Mary Nyaboke Maina & another [2021] KEELC 1327 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1327/eng@2021-10-27

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