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ELCPartially AllowedEnvironment & Land Case 168 of 2013· [2023] KEELC 18509 (KLR)

Order of St Augustine Kenya Registered Trustees v Otieno & 5 others

Environment and Land Court
16 March 2023
LKLC Komingoi
964 words in judgment
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The bottom line

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A Kenyan court set aside a default judgment because the defendants had a serious land counterclaim, but made them pay costs for missing the hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (LC Komingoi, J) determined a Notice of Motion dated 28th April 2022 by the six Defendants, brought under sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 38 Rule 1 and Order 51 of the Civil Procedure Rules, seeking to set aside the ex parte judgment delivered on 9th December 2021 and all consequential orders, and to have the suit heard de novo. The application was supported by the affidavit of Alfred Onyango and opposed by the Plaintiff through a replying affidavit sworn by its advocate, Salome M. Beacco; the parties canvassed the motion by written submissions. The Defendants, who run a school on the suit property and claim threatened eviction, argued they deserved a hearing; the Plaintiff relied on Shah vs Mbogo and Esther Wamaitha Njihia vs Safaricom, contending no sufficient grounds for setting aside were shown. The court framed two issues: whether sufficient reasons existed to set aside the ex parte judgment, and costs. It found the Defendants' affidavit did not accurately reflect the hearing of 23rd June 2021, when there was no appearance for the Defendants. Nonetheless, because the Defendants had counterclaimed seeking to be declared owners of the school, the court exercised its discretion to allow them to ventilate that claim. The ex parte judgment and consequential orders were set aside on condition the Defendants pay throw away costs of Kshs.20,000/- within thirty days; the suit was to be set down for hearing at the earliest opportunity; and the Plaintiff was awarded costs of the application.

Key legal issues

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01

Whether sufficient reasons were given to set aside the ex parte judgment of 9th December 2021

Holding

Application allowed; ex parte judgment and consequential orders set aside on terms, because the Defendants have a counterclaim seeking declaration of ownership of the school which they should be allowed to ventilate.

Reasoning

The court found the Defendants' affidavit did not accurately reflect the hearing of 23rd June 2021, when there was no appearance for the Defendants and the matter proceeded ex parte. However, the discretion to set aside ex parte judgment is aimed at doing justice. Since the Defendants had counterclaimed to be declared owners of the school, the court exercised its discretion to grant them an opportunity to ventilate that claim, subject to throw away costs.

p. 3
02

Costs of the application

Holding

Plaintiff awarded costs of the application, and Defendants to pay throw away costs of Kshs.20,000/- as a condition of setting aside.

Reasoning

Although the application sought costs in the cause, the court, having set aside the ex parte judgment on terms, ordered the Plaintiff to have costs of the application and imposed throw away costs of Kshs.20,000/- payable within thirty days as the condition for setting aside.

p. 3

Legal principles established

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  • The decision whether or not to set aside ex parte judgment is discretionary and is exercised to do justice between the parties, considering the nature of the action, any defence, the reason for non-attendance, and whether the plaintiff can be compensated by costs.

Court orders

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  1. 1.The ex parte judgment dated 9th December 2021 and all consequential orders set aside on condition that the Defendants pay the Plaintiff's throw away costs of Kshs.20,000/- within thirty (30) days from the date of the ruling
  2. 2.The suit be set down for hearing at the earliest opportunity
  3. 3.The Plaintiff shall have costs of this application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 38 Rule 1, Order 51

Cases cited (4)

  • Shah vs Mbogo & Another
    [1967] EA 116

    Discretion to set aside ex parte judgment is not designed to assist a party who deliberately sought to obstruct or delay the cause of justice.

  • Esther Wamaitha Njihia & 2 Others vs Safaricom Limited
    [2014] eKLR

    The discretion is free; the main concern of courts is to do justice to the parties before it.

  • Patel vs E.A Cargo Handling Services Ltd

    Discretion intended to avoid injustice or hardship from accident, inadvertence or excusable mistake.

  • Sebei District Administration vs Gasyali

    Nature of action, any defence, compensability by costs, and reason for failure to attend should be considered.

Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 38 Rule 1 and Order 51 of the Civil Procedure Rules

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, "Order of St Augustine Kenya Registered Trustees v Otieno & 5 others", Case Analysis (2023). Environment & Land Case 168 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18509/eng@2023-03-16

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