Saoli (Suing On His Own Behalf And As An Administrator Of The Estate Of Leposo Ole Saoli) & 2 others v Saoli (Environment & Land Case 264 of 2017) [2022] KEELC 2835 (KLR)
The bottom line
#A Kenyan court refused to restart a 2010 land case but let the absent defendant still present his defence, balancing fairness with ending old disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant/applicant had reasonable cause to warrant setting aside the proceedings of February 8 and 28, 2022 and ordering a hearing de novo
The application was refused in so far as it sought to set aside the proceedings and commence the hearing de novo; the proceedings were upheld, but the court reopened the case to allow the defendant to present his defence and file written submissions.
The court reviewed the record and found the hearing date of February 8, 2022 had been taken by consent in open court, that the defendant and his advocate were absent, and that a hearing notice for February 28, 2022 was served and acknowledged by his advocate's firm. The defendant thus failed to attend despite being granted a last adjournment. Balancing this against the defendant's fair-hearing rights under articles 50(1) and 27(1), and the age of the matter and parties, the court upheld the proceedings but reopened the case for the defence only, with costs to the defendant.
Whether the defendant's right to a fair hearing under article 50(1) required a fresh hearing
Although the proceedings were upheld, article 50(1) and article 27(1) justified reopening the case to allow the defendant to present his defence case for trial and file written submissions, rather than reserving judgment without hearing his defence.
The court noted the matter had been closed and reserved for judgment. Being mindful of article 50(1) (right to a fair and public hearing) and article 27(1) (equality before the law), it chose a middle course: the earlier proceedings stood, but the defendant would be permitted to present his defence and file written submissions. This balanced the constitutional fair-hearing guarantee against the need to bring long-standing litigation to an end.
Legal principles established
#- A party seeking to set aside ex parte proceedings must demonstrate sufficient or reasonable cause for doing so.
Court orders
#- 1.The proceedings conducted on February 8, 2022 and February 28, 2022 are upheld
- 2.The case is reopened to allow the defendant/applicant to present his defence case for trial and filing of written submissions
- 3.Costs of the application to be borne by the defendant/applicant
- Jurisdiction invoked
- Articles 48, 50(1) and 27(1) of the Constitution; sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saoli (Suing On His Own Behalf And As An Administrator Of The Estate Of Leposo Ole Saoli) & 2 others v Saoli (Environment & Land Case 264 of 2017) [2022] KEELC 2835 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2835/eng@2022-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.