Bilasio Odhiambo Ogutu Petitioning as the Administrator of the Estate of the Late Ogutu Onyanga Ondiege v Senior Principal Magistrate Siaya Law Courts & another [2021] KEELC 2161 (KLR)
The bottom line
#A Kenyan court refused to reopen a land case won in the owner's absence, ruling his lawyer's inaction was not a good enough excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant gave a sufficient reason for failure to attend court
No sufficient reason was given; the applicant was duly served, entered appearance and had multiple opportunities to file a replying affidavit and submissions but failed to do so
Service was undisputed and the applicant entered appearance through Ochanda Onguru & Co. Advocates and later Omaya & Co. Advocates. The replying affidavit showed the applicant's counsel obtained adjournments, sought time to file a replying affidavit and submissions, and never did. No reason was tendered for the advocate's non-attendance, so the non-participation was inaction, not excusable mistake.
Whether the applicant demonstrated a defence raising triable issues
No; the applicant did not attach a draft defence or replying affidavit, so the court could not assess triable issues
Although the applicant argued he had a tangible response based on the procedural route the petitioner took from the Land Disputes Tribunal, no draft defence or replying affidavit was annexed. Following CMC Holdings v Nzioki and Tree Shade Motors v DT Dobie, the court is obliged to consider a draft defence to determine if it raises a reasonable defence; absent one, no such finding was possible.
Whether the missing court file justified the two-year delay in filing the application
The disappearance of the file explained only the delay in filing, not the failure to attend the hearing
The applicant attributed the delay to the original file going missing for close to two years, necessitating a reconstructed skeleton file. The court noted the applicant gave no explanation for why judgment was delivered without his participation and concentrated on the post-judgment file disappearance, which did not constitute sufficient cause for the non-attendance itself.
Legal principles established
#- On an application to set aside an ex parte judgment under Order 12, the court asks whether the applicant has given a good reason for failure to attend court and then considers whether the ex parte proceedings should be set aside
- An advocate's mere inaction is not an excusable mistake; the principal bears the consequences of the agent's failure to perform vested duties
- Article 159(2)(d) of the Constitution is not a cure for unexplained negligent commissions and omissions by parties and their advocates
- A party seeking to set aside an ex parte judgment must annex a draft defence showing triable issues
Court orders
#- 1.The applicant's notice of motion dated 26/04/2019 seeking to stay execution of and set aside the judgment of Hon. A.K. Kaniaru delivered on 21st April 2016 is dismissed
- 2.Costs of the application awarded to the petitioner/respondent
- On appeal from
- Siaya PM Chief Magistrate's Court (decision of Hon. A.K. Kaniaru in the petition)
- Petition delivered 21st April 2016; underlying Tribunal Case Siaya District Land Disputes Tribunal Case No. SYA/303/97 adopted in SIAYA PMCC NO. 196 OF 1997
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rules 1, 3 & 15 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bilasio Odhiambo Ogutu Petitioning as the Administrator of the Estate of the Late Ogutu Onyanga Ondiege v Senior Principal Magistrate Siaya Law Courts & another [2021] KEELC 2161 (KLR)", Case Analysis (2021). Kisumu ELC Petition (application dated 26/04/2019 arising therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2161/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.