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ELCDismissedNot stated in judgment· [2021] KEELC 2420 (KLR)

Evaline Jepkorir Rono (Suing as the Administrator Ad Litem of the Estate of Fred Barsiron Rogho v Christopher T. Kiplagat & 7 others [2021] KEELC 2420 (KLR)

Environment and Land Court
14 July 2021
MOM. A. Odeny
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret dismissed the defendants' bid to overturn injunction orders because they never explained why they failed to respond despite being served.

What this practically means

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Executive summary

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The 5th, 6th and 7th defendants applied by notice of motion dated 2nd March 2021 seeking review, variation, stay and/or setting aside of the court's orders of 8th October 2020, which had restrained them from dealing with or accessing the suit parcels pending hearing of the main suit, and their reinstatement to the property. They argued through counsel that a technical hitch prevented them from prosecuting an earlier application dated 22nd October 2020, that Article 50(1) of the Constitution guaranteed their right to be heard, that they were registered owners holding indefeasible titles under section 26 of the Land Registration Act, and that a later order of 5th November 2020 permitting them to harvest wheat confirmed their possession. The plaintiff/respondent opposed, contending the defendants had been duly served with the application of 14th July 2020 but filed no replying affidavit, that no new evidence or error on the face of the record justified review, and that setting aside the orders would expose her to irreparable harm. The court framed a single issue: whether sufficient cause had been shown to set aside or vary the orders of 8th October 2020. Applying section 80 of the Civil Procedure Act, Order 51 Rule 15 and the Shah v Mbogo discretion, the court found the applicants were served but never filed a response, and that the technical hitch was immaterial since even attending the virtual hearing would not have enabled them to proceed. No sufficient cause was demonstrated. The application was dismissed with costs to the plaintiff, and the applicants were advised to fast-track the main suit.

Key legal issues

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Whether the applicants demonstrated sufficient cause to set aside or vary the orders of 8th October 2020 under Order 40 Rule 7, Order 51 Rule 15 and Section 80 of the Civil Procedure Act

Holding

The application failed because the applicants were served, did not file any response, and the alleged technical hitch could not explain the absence of a replying affidavit; the earlier application dated 22nd October 2020 sought the same relief.

Reasoning

The court exercised its discretion to set aside ex parte orders only where sufficient cause is shown, relying on Shah v Mbogo and Wachira Karani v Bildad Wachira. The applicants were served but filed no replying affidavit, and counsel's 'technical issues' explanation did not excuse the absence of any response on record. A prior application of 22nd October 2020 had sought the identical relief. The court thus found no sufficient cause and dismissed the application.

p. 3

Legal principles established

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  • The discretion to set aside ex parte orders is to be exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed justice.
  • Sufficient cause for setting aside or varying an order is a question of fact to be assessed in the varied and special circumstances of each case; there is no universal formula.

Court orders

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  1. 1.The application dated 2nd March 2021 is dismissed with costs to the plaintiff
  2. 2.The applicants are advised to fast-track the hearing of the main suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 40 Rule 7
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 15
  • Land Registration ActSection 26

Cases cited (8)

  • Giella Versus Cassman Brown
    (1973) EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Viiav Moriaria v Nansinoh Madhusinoh Darbar & another
    [2000] eKLR
  • Michael Muriuki Ngubuini v African Building Society Limited
    [2015] eKLR
  • Zacharia Ogomba Omari and Another vs Qtundo Mochache
  • Lazarus Kerich v Kisorio Arap Barno
    (2018) eKLR
  • Shah v Mbogo and Another
    [1967] EA 116
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
Jurisdiction invoked
Order 40 Rule 7, Order 51 Rule 15 and Section 80 of the Civil Procedure Act and Rules, 2010

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, "Evaline Jepkorir Rono (Suing as the Administrator Ad Litem of the Estate of Fred Barsiron Rogho v Christopher T. Kiplagat & 7 others [2021] KEELC 2420 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2420/eng@2021-07-14

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