Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironmental and Land Originating Summons 26 of 2021· [2022] KEELC 12745 (KLR)

Opot v Osoma & another

Environment and Land Court
29 September 2022
2,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
This is a ruling by A. Y. Koross, J of the Environment and Land Court at Siaya on the defendants' notice of motion dated May 19, 2022 in a land suit originally filed as Kisumu ELC No. 55 of 2018 and transferred to Siaya. The defendants sought leave for CSA Advocates LLP to come on record post-judgment and the setting aside of an ex parte judgment entered in the plaintiff's favour on May 12, 2022, with the matter to be heard de novo. The defendants explained that the counsel personally handling the matter, Mr Madowo, had left the previous firm HMS Advocates, and that the firm failed to notify them of the transfer or the hearing date; their current advocates discovered the judgment at the registry. The plaintiff opposed, contending that the defendants and their counsel were indolent, that service on the previous advocates was proper, and that the defence raised no triable issues. The court framed two issues. First, it granted leave to the incoming firm, noting the plaintiff did not oppose. Second, applying the settled principles in Stephen Ndichu v Monty's Wines and Spirits, it held the motion was filed within about a week of judgment, the record showed prior diligence by the defendants, the mistake was excusable, and the defence raised triable issues. The court set aside the ex parte judgment and consequential orders, conditioned on the defendants paying throw away costs of Kshs 20,000/- within 14 days, failing which the setting aside would stand vacated, and directed the suit to be heard de novo on November 22, 2022.

Key legal issues

#
01

Leave for incoming advocates post-judgment under Order 9 rule 9

Holding

Leave granted; the plaintiff did not oppose and the prayer was grounded on legal provisions.

Reasoning

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.

02

Setting aside ex parte judgment under Order 12 rule 7

Holding

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.

Reasoning

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.

p. 4

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. 1.The firm of CSA Advocates LLP granted leave to come on record on behalf of the defendants
  2. 2.The ex parte judgment entered on May 12, 2022 together with any ensuing consequential orders set aside
  3. 3.Defendants to pay plaintiff throw away costs of Ksh 20,000/- within 14 days, failing which the setting aside order stands vacated
  4. 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.