Opot v Osoma & another
The bottom line
#A Siaya court set aside a land judgment won by default, but only because the losing side paid costs quickly and showed the mistake was genuine.
What this practically means
#Executive summary
#Key legal issues
#Leave for incoming advocates post-judgment under Order 9 rule 9
Leave granted; the plaintiff did not oppose and the prayer was grounded on legal provisions.
Order 9 rule 9 requires leave post-judgment for a change of advocates, and Order 9 rule 10 permits combining such a prayer with others provided the change-of-advocate question is determined first. The plaintiff's replying affidavit did not oppose the change and his counsel did not submit on it, so there was no reason to deny leave.
Setting aside ex parte judgment under Order 12 rule 7
Ex parte judgment set aside; the mistake was excusable, there was no inordinate delay, the defence raised triable issues, and justice is better served by a hearing on the merits.
The court applied the settled principles in Stephen Ndichu v Monty's Wines and Spirits: discretion is exercised to avoid injustice from accident, inadvertence or excusable error, not to reward deliberate obstruction. The record showed prior diligence by the defendants and their counsel; the motion was filed within about a week of judgment; and the replying affidavit raised triable issues. Denial of a hearing should be the last resort.
Legal principles established
#- The court's discretion to set aside an ex parte judgment is free and its main concern is to do justice to the parties, exercised to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs or delays justice.
- A litigant's previous conduct in prosecuting the suit is relevant in assessing the veracity of the reasons given for non-attendance.
Court orders
#- 1.The firm of CSA Advocates LLP granted leave to come on record on behalf of the defendants
- 2.The ex parte judgment entered on May 12, 2022 together with any ensuing consequential orders set aside
- 3.Defendants to pay plaintiff throw away costs of Ksh 20,000/- within 14 days, failing which the setting aside order stands vacated
- 4.Suit to be heard de novo in open court on November 22, 2022
- Jurisdiction invoked
- Order 12 rule 7 and Order 9 rule 9 of the Civil Procedure Rules; section 3A of the Civil Procedure Act; article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opot v Osoma & another", Case Analysis (2022). Environmental and Land Originating Summons 26 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12745/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.