Ethics and Anti-Corruption Commission v Lekyo Tours Ltd & another [2021] KEELC 4322 (KLR)
The bottom line
#A Mombasa court refused to reopen a land case because the company lied about being served and waited too long to act.
What this practically means
#Executive summary
#Key legal issues
#Whether the hearing notice was served on the applicant's counsel
There was ample evidence, including an affidavit of service, that M/s Tarus & Company, on record for the applicant, were duly served with the hearing notice; the application's claim of non-service was false.
The court examined the record and found an affidavit of service sworn by a process server, Patrick Chirongo, showing service on M/s Tarus & Company on 9 August 2018, with the stamped hearing notice received by the firm. The record of 16 October 2019 also showed counsel present holding brief for the applicant. The application was therefore founded on a fallacious and deceptive narrative.
Whether the hearing was truly ex parte
The hearing of 16 October 2019 was not ex parte; counsel for both defendants were present earlier that morning but failed to appear when the matter proceeded.
Counsel holding brief for Mr. Tarus and for Mr. Rutto appeared when the matter was called and sought an adjournment, which was denied. When the matter later proceeded, only plaintiff's counsel was present. The court held their absence at the time of hearing was unexplained, so the hearing was not properly ex parte against the applicant.
Imputed knowledge of a company through its directors
Knowledge of the hearing date held by the 2nd defendant, a director of the applicant company, is imputed to the company; the company could not credibly claim ignorance.
A company is an artificial person acting through its directors; its knowledge is that of its human directors. The 2nd defendant never claimed unawareness of the hearing date and gave no explanation for absenting himself both personally and on behalf of the company. The claim of ignorance was therefore curious and unacceptable.
Delay and indolence in bringing the application
The application was filed more than 8 months after the hearing, demonstrating indolence that disentitles the applicant to the equitable remedy sought.
The court did not believe it took Ms. Chelal 8 months to discover the hearing had proceeded, particularly since the 2nd defendant, a director, appeared aware of the hearing date. Even assuming she was unaware, the applicant had not been keen to follow up on its own case, and equity does not aid the indolent.
Credibility and candour of the applicant's deponent
Having been deceitful on the question of service, Ms. Chelal's credibility was so tarnished that the court could not believe her assertion that her advocates never informed her of the hearing date.
The deponent first asserted the applicant's advocate was never served, which was disproved by the affidavit of service. When confronted, she shifted to claiming her advocates never informed her. Having lied on service, the court found she could not be believed on the alternative claim, defeating the discretionary relief sought.
Order 11 non-compliance argument
The Order 11 argument raised in the supplementary affidavit was an afterthought, not among the grounds in the application, and a red herring.
The issue of pre-trial compliance appeared only in the supplementary affidavit and was not a ground of the application. The matter had come up for pre-trial on 17 July 2018 when none of the defendants' counsel appeared, and the applicant had had since 2014 to comply. Whichever way viewed, the point was a red herring.
Legal principles established
#- A party seeking the court's equitable discretion must come with full candour; the court will not exercise discretion in favour of one who misleads it with false statements of fact.
- A company acts through its directors, and a director's knowledge of a hearing date is imputed to the company.
- Equity does not aid the indolent but the vigilant; delay in seeking to set aside proceedings weighs against the application.
Court orders
#- 1.The application dated 25 June 2020 is dismissed with costs to the plaintiff
- Jurisdiction invoked
- Inherent application to set aside ex parte proceedings and judgment (suit concerning land parcel MN/I/3074; the judgment does not state the enabling provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Lekyo Tours Ltd & another [2021] KEELC 4322 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4322/eng@2021-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.