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ELCAllowedNot stated in judgment· [2021] KEELC 3705 (KLR)

Thomas Ombuya Arogo v Evans Nyakambi Nyangeri & 2 others [2021] KEELC 3705 (KLR)

Environment and Land Court
12 April 2021
JOJ. M. Onyango
3,419 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 threw out a hearing done without a defendant because the hearing notice was served on the wrong office.

What this practically means

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Executive summary

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The 2nd Defendant filed a Notice of Motion seeking to set aside ex parte proceedings of 5th March 2020, in which the Plaintiff's case had been heard and the 2nd Defendant's defence closed, on the ground that the Hearing Notice had been served on the wrong address - the Legal Claims Department of UAP Old Mutual Offices rather than his former advocates, Okatch & Partners Advocates. The Plaintiff opposed, arguing service was proper, that the 2nd Defendant had been dilatory throughout (failing to file an Amended Defence and never attending court despite notices), and that the application was an abuse of process designed to obtain the court's favour through a change of advocates. The court framed a single issue: whether the ex parte proceedings of 5th March 2020 should be set aside. Guided by the overriding objective and authorities on setting aside ex parte decrees, the court examined the process server's Affidavit of Service and the stamped copies attached to it. Although other Hearing Notices bore the former advocates' receipt stamps, the contested Notice bore the stamp of UAP Old Mutual Legal Claims, establishing that the former advocates were not properly served. Non-attendance was therefore explained, and denying a party a hearing being a last resort, the court allowed the application, set aside the ex parte proceedings of 5th March 2020, directed that the hearing commence afresh, and ordered that costs of the application be costs in the cause. Judgment was delivered at Kisii on 12th April 2021 by J.M. Onyango, Judge.

Key legal issues

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01

Whether the 2nd Defendant's former advocates were properly served with the Hearing Notice for 5th March 2020

Holding

Service was improper because the stamp on the served Hearing Notice belonged to UAP Old Mutual Legal Claims, not the former advocates' firm

Reasoning

The process server claimed service was accepted by stamping and signing, but the stamp on the contested Hearing Notice bore the name of UAP Old Mutual Legal Claims rather than Okatch & Partners Advocates. Although other Hearing Notices addressed to the former advocates' new offices bore their receipt stamps, the contested one did not, leaving no doubt it was not received by them.

p. 5
02

Whether sufficient cause existed to set aside the ex parte proceedings of 5th March 2020

Holding

Yes; improper service explained the non-attendance, and the application was allowed

Reasoning

Applying the overriding objective and the case law on setting aside ex parte decrees, the court held that denying a party a hearing should be the last resort. Having found no proper service on the former advocates, the non-attendance on 5th March 2020 was explained, and the court exercised its discretion to set aside the proceedings and order a fresh hearing.

Legal principles established

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  • Setting aside ex parte proceedings is discretionary, and a party should be denied a hearing only as a last resort where the failure to attend is unexplained.
  • A defendant seeking to set aside ex parte proceedings must show either improper service or sufficient cause for failure to appear.

Court orders

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  1. 1.The ex-parte proceedings of 5th March 2020 set aside
  2. 2.Hearing of the suit to commence afresh
  3. 3.Costs of the application to be costs in the cause
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 2 and 4 and Order 51 Rule 1 of the Civil Procedure Rules; Articles 159 and 50 of the Constitution of Kenya

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, "Thomas Ombuya Arogo v Evans Nyakambi Nyangeri & 2 others [2021] KEELC 3705 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3705/eng@2021-04-12

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