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ELCAllowedNot stated in the judgment· [2022] KEELC 2703 (KLR)

Ongwenya & 2 others v Kenya National Highway Authority (Environment & Land Case 272 of 2016) [2022] KEELC 2703 (KLR)

Environment and Land Court
11 May 2022
JOJ.M ONYANGO
1,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court set aside a land judgment won by default because the defendant's lawyer missed the hearing by mistake, but ordered costs as a penalty.

What this practically means

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Executive summary

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The Defendant filed a Notice of Motion dated November 19, 2021 seeking to set aside a judgment delivered by this court on April 13, 2021 and to restrain execution of the decree, so that it could call witnesses and present its case. Counsel Constantine Ogari deponed that no hearing notice was found on the file and that the parties were litigating over the same subject matter in Kajiado HCCC No. 27 of 2019. The Plaintiff opposed, exhibiting a hearing notice stamped by the Defendant's advocates and noting the decree sent to them was returned unclaimed. The court framed one issue: whether the April 13, 2021 judgment should be set aside. Applying the principles in Yamko Yadpaz Industries Ltd v Kalka Flowers and Patel v E.A Cargo Handling Services, the court held that service was effected, but accepted that counsel inadvertently missed the hearing during the Covid-19 pandemic, while faulting counsel for not owning up to the mistake. Finding that the Defence raised triable issues, the court exercised its discretion in favour of the Defendant so the case would be determined on the merits, subject to thrown away costs. The ex-parte judgment of April 13, 2021 was set aside and the Defendant ordered to pay thrown away costs of Kshs. 20,000/= before the hearing date. Judgment delivered at Kisii on May 11, 2022 by J.M Onyango, Judge.

Key legal issues

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01

Whether the ex-parte judgment of April 13, 2021 should be set aside

Holding

Yes; the defendant's advocates were served but inadvertently missed the hearing during the Covid-19 pandemic, and the defence raises triable issues, so justice favours determination on the merits subject to thrown away costs.

Reasoning

The court applied settled principles from Yamko Yadpaz Industries Ltd v Kalka Flowers and Patel v E.A Cargo Handling Services: discretion to set aside is broad, aimed at avoiding injustice from inadvertence, and where a regular judgment exists it is set aside only if a triable defence exists. The court found the defence raised triable issues, faulted counsel for not owning up to the mistake, but allowed the application with thrown away costs to the plaintiff.

p. 3

Legal principles established

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  • A regular judgment will not usually be set aside unless the court is satisfied there is a defence on the merits raising a triable issue.
  • The discretion to set aside an ex-parte judgment is free but must be exercised to do justice, not to reward deliberate obstruction.

Court orders

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  1. 1.The ex-parte judgment dated April 13, 2021 is hereby set aside.
  2. 2.The Defendant/Applicant shall pay thrown away costs of Kshs. 20,000/= to be paid before the hearing date.

Authorities

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Legislation

  • Constitution of KenyaArticle 50

Cases cited (7)

  • Yamko Yadpaz Industries Ltd vs Kalka Flowers
    2013 KLR
  • Maina Vs Mugiria
  • Shah v Mbogo
    1967 EA 116 at 123
  • Mbogo v Shah
    1967 EA 93
  • Kanji Naran v Velji Ramji
    1954 21 EACA 20
  • Smith v Middleton
    1972 SC 30
  • Patel v E.A Cargo Handling Services
    (1974) E.A 75
Jurisdiction invoked
Inherent discretion to set aside ex-parte judgment under civil procedure (matter arising from the court's own judgment of April 13, 2021); specific provision not cited

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, "Ongwenya & 2 others v Kenya National Highway Authority (Environment & Land Case 272 of 2016) [2022] KEELC 2703 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2703/eng@2022-05-11

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