Eliud Waititu Kimeria & another v Unaitas Saving & Credit Society Co-Operative Limited
The bottom line
#A Nakuru court reopened a land case after a lawyer mistakenly thought the hearing was virtual, but ordered the defendants to pay the plaintiff Kshs 20,000 for the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was established to set aside the ex parte proceedings of March 24, 2022
Yes - counsel's genuine error in believing the hearing was virtual amounted to sufficient cause, notwithstanding that the hearing notice stated open court.
The court found the hearing notice did state the hearing would be in open court, so the applicants' assertion they were not informed was untrue. However, applying Article 159 and Shah v Mbogo, the judge accepted the absence was due to a miscommunication in counsel's office - an excusable mistake rather than deliberate obstruction or negligence - and held this constituted sufficient cause for the discretion to be exercised.
Whether the defence raises triable issues
Yes - the amended defence denies the public auction and two conflicting titles exist, necessitating further enquiry.
The respondent argued the defence contained mere denials and no witness statements or documents had been filed. The court found the defence denied that the suit property was sold by public auction and alleged the sale was illegal. It also noted two titles to the same property - one in each party's name - were on record, matters necessitating further enquiry.
On what terms should the discretion be exercised
The setting aside was ordered with thrown away costs of Kshs 20,000 payable to the plaintiff, and application costs to abide the outcome of the suit.
The court acknowledged that setting aside would delay justice and inconvenience the plaintiff, who had closed its case. Relying on Patel v East Africa Cargo Handling Services, it declined to fetter its discretion and balanced the parties' positions by awarding thrown away costs despite no specific amount being pleaded by the defendants.
Legal principles established
#- The discretion to set aside ex parte proceedings exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice.
- Sufficient cause for absence is a question of fact to be assessed in the varied and special circumstances of each case, with no universal formula.
- A mistake of counsel may constitute sufficient cause such that it should not be visited upon the client.
Court orders
#- 1.The orders made by the court and proceedings of March 24, 2022 are set aside
- 2.The plaintiff's case is re-opened for purposes of cross-examination of the plaintiff by the defendants/applicants
- 3.The defendants/applicants' case shall be re-opened for purposes of tendering evidence and cross examination
- 4.The plaintiff shall have thrown away costs of Kshs 20,000 to be paid before the hearing date
- 5.The costs of the application shall abide the outcome of the suit
- Jurisdiction invoked
- Articles 50 and 159 of the Constitution of Kenya, 2010; Order 51 rule 15 of the Civil Procedure Rules; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Waititu Kimeria & another v Unaitas Saving & Credit Society Co-Operative Limited", Case Analysis (2022). Environment & Land Case 02 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12641/eng@2022-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.