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ELCDismissedPetition dated 30/09/2019 (Siaya ELC)· [2022] KEELC 989 (KLR)

Kenneth Ouma Akech v County Government of Siaya & another [2022] KEELC 989 (KLR)

Environment and Land Court
3 March 2022
AKA. Y. Koross
1,904 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Siaya Environment and Land Court refused to re-open a land dispute because the county government delayed 15 months, blamed its lawyer, and had no evidence.

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 Siaya (A. Y. Koross, J) on a notice of motion dated 7/7/2020 but filed 4/10/2021, by which the respondents sought to set aside the orders of 14/11/2019 made in the petitioner's constitutional petition concerning land parcel SIAYA TOWNSHIP BLOCK 1/276, and to re-open the petition and file a response. The respondents attributed their default to the indisposition of their counsel, M/s Maureen Odek, and contended that they had a good defence raising triable issues, that their suit property is public land, and that an advocate's mistake should not be visited on a client. The petitioner opposed, asserting that counsel was in fact present on 14/11/2019, that no ex parte orders existed, and that the motion was an afterthought filed over a year late. The court framed a single issue: whether the application should be allowed. It held that the record showed no ex parte orders were issued on 14/11/2019; Mr. Anyul held Mr. Olendo's brief and no evidence showed M/s Odek was involved, so no orders existed to set aside. The alleged Siaya County Part Development Plan of 1971 backing the public-land defence was absent from the filed documents, so no triable issues arose. Further, the 15-month delay between dating and filing the motion was inordinate, and per Habo Agencies, parties cannot simply blame their advocates. The motion was dismissed with costs to the petitioner.

Key legal issues

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01

Whether there were ex parte orders of 14/11/2019 capable of being set aside

Holding

None existed; respondents' counsel (Mr. Anyul holding Mr. Olendo's brief) was present and aware of directions and judgment date, so the motion's foundational prayer fails.

Reasoning

The court record shows the respondents' advocates attended court on 14/11/2019, the same day the notice of appointment was filed. There is no evidence M/s Maureen Odek attended or held a brief; Mr. Anyul held Mr. Olendo's brief and Olendo was privy to the directions and judgment date. Since the orders were not ex parte, the relief sought is not tenable.

p. 3
02

Whether the draft response raises triable issues

Holding

It does not; the alleged Siaya County Part Development Plan of 1971 supporting the public-land claim is not in the filed documents.

Reasoning

The respondents' draft response claimed the suit property is public land, relying on a Siaya County Part Development Plan of 1971 said to be annexed. The court combed through the respondents' documents and could not find the document, and applying Thayu Kamau Mukigi v Francis Kibaru Karanja, concluded the draft response raises no triable issues.

p. 3
03

Whether the delay in filing the motion and blame on counsel justify setting aside

Holding

The 15-month gap between dating (7/7/2020) and filing (4/10/2021) is inordinate, and parties cannot simply blame their advocates; motion not merited.

Reasoning

The court applied Habo Agencies Limited, holding that parties must show interest in and follow up their cases rather than blame advocates for transgressions. The unexplained 15-month delay, the absence of ex parte orders, and the lack of triable issues meant the motion failed and costs followed the event.

p. 3

Legal principles established

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  • Setting aside a default or ex parte judgment is discretionary and must be exercised judicially to avoid injustice, not to assist a party who deliberately obstructs or delays justice.
  • Parties, not their advocates, bear responsibility for following up on their cases; blaming advocates alone does not excuse default.

Court orders

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  1. 1.The Notice of Motion dated 7/7/2020 is dismissed with costs to the petitioner.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d); Articles 50 and 159
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Environment and Land Court ActSection 3
  • Civil Procedure RulesOrder 10 Rule 11; Order 12 Rules 2 and 7; Order 51 Rules 1 and 15
  • Mutunga Rules (Court of Appeal Rules context)Rule 3

Cases cited (12)

  • Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 others
    [2013] eKLR
  • Raila Odinga & others v IEBC & 3 others
    [2013] eKLR
  • Bernadette Canute v Herbert Sore Makatiani
    [2016] eKLR
  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2015] eKLR
  • Savings, Loans Limited v Susan Wanjiru Muritu
    Nairobi HCCS No 397 of 2002
  • Multiple Hauliers v Enock Bilindi Musundi & 2 others
    [2021] eKLR
  • Benjamin Kipkulei v Shadrack Kamaamia & 7 others
    [2019] eKLR
  • Nyakoya Kaba & another v Rashmikant Meghji Shar
    [2016] eKLR
  • Shah v Mbogo
    [1967] EA 116 and 123B
  • Mbogo & Another v Shah
  • Patel v E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Thayu Kamau Mukigi v Francis Kibaru Karanja
    (2013) eKLR
Jurisdiction invoked
Articles 50 and 159 of the Constitution of Kenya; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 12 Rules 2 and 7, Order 10 Rule 11 and Order 51 Rules 1 and 15 of the Civil Procedure Rules; Section 3 of the Environment and Land Court Act

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, "Kenneth Ouma Akech v County Government of Siaya & another [2022] KEELC 989 (KLR)", Case Analysis (2022). Petition dated 30/09/2019 (Siaya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/989/eng@2022-03-03

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