Fiona Ansett v George Odinga Oraro & 3 others [2021] KEELC 4710 (KLR)
The bottom line
#A Nakuru court refused to undo contempt orders, confirming that service by email and WhatsApp counts even during Covid-19.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of 23rd July 2020 could be set aside under Order 51 Rule 15 (ex parte orders)
The application fails; the Applicant was duly served electronically and through WhatsApp and given multiple opportunities to respond but filed none.
The court reviewed the record: the Applicant's Counsel was present on 20th February 2020 when the contempt application was slated for hearing and filed grounds of objection. Orders, submissions and mention dates were served through digital platforms per Legal Notice No. 22 of 2020, evidenced by an affidavit of service. The Applicant was given further chances to file submissions but did not.
Whether review under Order 45 Rule 1 was available on account of the Covid-19 pandemic and the Chief Justice's blanket stay of proceedings
No; the Applicant did not demonstrate discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason.
Order 45 Rule 1 restricts review to specified grounds made without unreasonable delay. The Applicant's claimed understanding that the blanket Covid-19 stay meant the matter was stood over generally does not fall within those grounds, particularly given the Civil Procedure Amendment Rules (Legal Notice No. 22 of 2020) permitting virtual service and proceedings.
Whether the Applicant's constitutional rights (Articles 25, 29, 50) were violated by hearing the contempt application without his personal awareness
No violation; this was not a proper case for the court to exercise discretion in his favour.
Article 24 permits limitation of rights only by law to the extent reasonable and justifiable. The court found the Applicant was properly served and afforded opportunities; his liberty argument did not overcome the record of service and non-participation.
Legal principles established
#- Jurisdiction to vary or set aside orders of a court is sparingly exercised and the reasons must be specified and on solid basis, guided by sufficient cause.
- Review under Order 45 Rule 1 requires discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, made without unreasonable delay; a mere misunderstanding of a CJ's blanket Covid-19 stay of proceedings does not qualify.
- Litigation cannot be conducted on the basis of trial and error.
Court orders
#- 1.The Applicant's application dated 20th August 2020 is dismissed in its entirety
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 51 Rule 15 and Order 45 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Articles 24, 25, 29 and 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fiona Ansett v George Odinga Oraro & 3 others [2021] KEELC 4710 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4710/eng@2021-01-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.