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ELCDismissedNot stated in the judgment (application dated 28th January 2020)· [2021] KEELC 2490 (KLR)

In re Estate of Kiptanui Arap Kogo (Deceased) [2021] KEELC 2490 (KLR)

Environment and Land Court
19 July 2021
MOM. A. Odeny
1,174 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to revive a dead plaintiff's case or stop his eviction because he was properly served, skipped the hearing, and gave no explanation.

What this practically means

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Executive summary

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This ruling determines a notice of application dated 28th January 2020 by Wilson Kiprotich Tanui, son of the deceased plaintiff Kiptanui arap Kogo, who died on 29th January 2020 after the suit had been heard and before judgment was delivered on 23rd April 2020. The applicant sought substitution for the deceased plaintiff, a stay of eviction orders issued to Eshikoni auctioneers, and the re-opening of the plaintiff's case to be decided on merit. The court allowed the unopposed limbs — the firm of Rotich Langat & Partners Advocates coming on record after judgment and the substitution of the deceased plaintiff to permit further actions in the court or the Court of Appeal. The contested limbs — re-opening the case and staying the eviction — were refused. The court framed the key question as whether the plaintiff had been properly served with a hearing notice. It found that the affidavit of service annexed to the application was the same document that had previously convinced the court of proper service, and no new evidence justified reconsideration. Applying Order 12 Rule 7 of the Civil Procedure Rules and the principles in Patel v EA Cargo Handling Services and Shah v Mbogo, the court held the discretion to set aside is wide but must be exercised judiciously; since the plaintiff was served, failed to attend without explanation, and died only after the hearing, exercising discretion in the applicant's favour would amount to a miscarriage of justice. The application was dismissed with costs to the respondent.

Key legal issues

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01

Proper service of hearing notice on the plaintiff

Holding

The affidavit of service filed when the matter proceeded satisfied the court of proper service, and no new evidence was presented to reconsider it

Reasoning

The court compared the affidavit of service that had satisfied it at the hearing with the one annexed to the application. It found they were the same document, so nothing new had been placed before it to justify reconsideration of service. The applicant also did not file submissions, so the court relied on the supporting affidavit alone.

p. 2
02

Setting aside dismissal/judgment under Order 12 Rule 7

Holding

Discretion refused: the plaintiff was duly served, died after the hearing, and no explanation was offered for his non-attendance; allowing the application would be a miscarriage of justice

Reasoning

Guided by Patel v EA Cargo Handling and Shah v Mbogo, the court held the discretion is broad but must be exercised judiciously. Since the plaintiff had notice, did not attend, gave no explanation, and judgment was posthumously entered after the hearing, discretion in the applicant's favour would cause a miscarriage of justice.

p. 2

Legal principles established

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  • The setting aside of a judgment or dismissal for non-attendance is discretionary and the discretion must be exercised judiciously in the circumstances of each case, with the main concern being to do justice to the parties
  • The discretion to set aside is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a person who deliberately obstructed or delayed the course of justice

Court orders

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  1. 1.Leave granted to the firm of Rotich Langat & Partners Advocates to come on record for the applicant in place of Bartamutta Sang & Sang Advocates after entry of judgment (not opposed)
  2. 2.Substitution of the deceased plaintiff by the applicant allowed to permit further actions in this court or the Court of Appeal (not opposed)
  3. 3.The application dated 28th January 2020 dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 1
  • Civil Procedure RulesOrder 12 Rule 3
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (2)

  • Patel vs. EA Cargo Handling Services Limited
    (1974) E.A 75
  • Shah –v- Mbogo
    (1967) EA 116
Jurisdiction invoked
Inherent jurisdiction under Order 12 Rule 7 of the Civil Procedure Rules to set aside or vary a judgment entered/dismissal for non-attendance

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, "In re Estate of Kiptanui Arap Kogo (Deceased) [2021] KEELC 2490 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 28th January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2490/eng@2021-07-19

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