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ELCDismissedNot stated in the extract· [2021] KEELC 4710 (KLR)

Fiona Ansett v George Odinga Oraro & 3 others [2021] KEELC 4710 (KLR)

Environment and Land Court
13 January 2021
2,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Nakuru court refused to undo contempt orders, confirming that service by email and WhatsApp counts even during Covid-19.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (M.C. Oundo, J) on an application dated 20th August 2020 by Anthony Kimaru Mutahi, the 3rd Defendant, seeking to set aside and/or vary the orders of 23rd July 2020 by which the court found him in contempt of conservatory orders issued on 8th November 2017 restraining developments, disposal, transfer or alienation of the suit property. His sentencing had been suspended to 23rd September 2020 due to the Covid-19 pandemic. The application was brought under Order 51 Rule 15 and Order 45 Rule 1 of the Civil Procedure Rules, Sections 1A, 3 and 3A of the Civil Procedure Act and Articles 25 and 29 of the Constitution, on the basis that he was unaware of proceedings on the contempt application, having understood the Chief Justice's blanket Covid-19 stay of proceedings to mean the matter had been stood over generally. The Plaintiff/Respondent (Flora Ansett, substituted for the deceased Stuart Richard Cunningham) opposed, filing replying and supplementary affidavits but no submissions. The court perused the record and found the Applicant's Counsel was present on 20th February 2020 when the contempt application was fixed for hearing and filed grounds of opposition; orders, submissions and mention dates were served digitally under Legal Notice No. 22 of 2020, evidenced by an affidavit of service, and the Applicant was repeatedly given opportunity to file submissions but did not. Applying the restrictive grounds of review, and the Indian Supreme Court authority in Ajit Kumar Rath v State of Orisa, the court held that neither sufficient cause under Order 51 Rule 15 nor any Order 45 Rule 1 ground was established. The application was dismissed in its entirety with costs.

Key legal issues

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01

Whether the orders of 23rd July 2020 could be set aside under Order 51 Rule 15 (ex parte orders)

Holding

The application fails; the Applicant was duly served electronically and through WhatsApp and given multiple opportunities to respond but filed none.

Reasoning

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.

p. 2
02

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

Holding

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.

Reasoning

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.

p. 3
03

Whether the Applicant's constitutional rights (Articles 25, 29, 50) were violated by hearing the contempt application without his personal awareness

Holding

No violation; this was not a proper case for the court to exercise discretion in his favour.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Applicant's application dated 20th August 2020 is dismissed in its entirety
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 15
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Constitution of Kenya, 2010Articles 24, 25, 29 and 50
  • Legal Notice No. 22 of 2020 (Civil Procedure Amendment Rules)Virtual court service and proceedings during Covid-19

Cases cited (1)

  • Ajit Kumar Rath vs State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
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

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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, "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.