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ELCDismissedNotice of Motion dated 4/11/2020· [2021] KEELC 4411 (KLR)

Margaret Nabuin Lomatong v Sylvia Abei Kosiae & another [2021] KEELC 4411 (KLR)

Environment and Land Court
26 January 2021
MNMwangi Njoroge
1,018 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to reverse orders from a missed online hearing, saying cases must be decided on their merits, not endless procedural applications.

What this practically means

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Executive summary

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The plaintiff moved the Environment and Land Court at Kitale by notice of motion dated 4/11/2020, under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1(a) & 4(1) and 50 of the Civil Procedure Rules, seeking to set aside the court's orders of 14/10/2020 and for leave to respond to the defendants' application, which counsel had misdescribed as dated 11/10/2020 but which was in fact dated 11/9/2020. The application, supported by counsel's affidavit and unopposed, attributed the failure to respond to counsel's inability to access the court link during the electronic hearing of 14/10/2020. The background was that the defendants had applied on 11/9/2020 to set aside an ex parte judgment on the ground that the suit, though earlier dismissed, had been reinstated without service on them; on 14/10/2020 the court granted that application as unopposed. Mwangi Njoroge J held that counsel had known of the 11/9/2020 application and the consequences of not responding; that, the ex parte judgment having been set aside, the parties stood at par as at the inception of the suit; and that substantive justice under Article 50 and Article 159(2)(b) and (d) of the Constitution required a hearing on the merits rather than technical restoration of an irregularly obtained judgment. The court also noted there was no affidavit of service of the instant application. The application was dismissed with each party bearing its own costs, and the suit was set for mention on 10 March 2021 to fix a hearing date.

Key legal issues

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01

Whether technical inability to access an electronic court hearing justified setting aside orders made in counsel's absence

Holding

No - the court declined to set aside orders that had set aside an ex parte judgment, since substantive justice required both parties to be heard on the merits

Reasoning

The plaintiff's counsel knew of the 11/9/2020 application and the consequences of not responding. The ex parte judgment had been set aside for default, placing the parties at par as at inception of the suit. Setting aside those orders would offend Article 159(2)(b) and (d) of the Constitution, which require that justice not be delayed and be administered without undue regard to technicalities. No vested right exists in procedure, and the absence of an affidavit of service independently weighed against granting the application.

p. 2

Legal principles established

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  • Justice is to be administered without undue regard to procedural technicalities, and no party has a vested right in procedure
  • The court process should not be used to incubate successive setting-aside applications

Court orders

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  1. 1.The application dated 4/11/2020 is dismissed
  2. 2.Each party shall bear their own costs of the application
  3. 3.The suit shall be mentioned on the 10th March, 2021 to fix a suitable hearing date

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rules 1(a), 4(1); Order 50
  • Constitution of KenyaArticle 50; Article 159(2)(b) and 2(d)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1(a) & 4(1) and 50 of the Civil Procedure Rules

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, "Margaret Nabuin Lomatong v Sylvia Abei Kosiae & another [2021] KEELC 4411 (KLR)", Case Analysis (2021). Notice of Motion dated 4/11/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4411/eng@2021-01-26

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