Kariuki & another v Simple Pay Capital Limited & 2 others
The bottom line
#The Environment and Land Court refused to undo orders won by default, ruling that a party who ignores court papers cannot later blame their lawyer.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte orders of 23 January 2023 (confirmed 9 February 2023) should be set aside
Application dismissed; service was proper and the applicant failed to show sufficient cause, a defence on the merits, or prejudice
The court applied Order 12 Rule 7 and Order 51 Rule 15 and the test in Mohammed v Shoka: defence on merits, prejudice, and explanation for delay. The applicant filed no draft response, did not dispute personal service, made no follow-up with counsel, and demonstrated no prejudice. The court found the applicant deliberately sought to evade the application and obstruct the cause of justice.
Whether the deponent Rashesh Adhyaru should be summoned for cross-examination under Order 19 Rule 2
Refused; with the setting-aside application dismissed there is no inconsistency in the affidavits justifying cross-examination
Order 19 Rule 2 empowers the court to summon a deponent, but the court must weigh the overriding objective under Sections 1A and 1B of the Civil Procedure Act. Summoning the deponent after the underlying application failed would risk a mini-trial or trial within a trial and would not serve judicial economy.
Allegations of fraud and falsification against the plaintiffs
Rejected for want of evidence; such allegations are criminal in nature and require proof beyond reasonable doubt
The defendants alleged the ex parte orders were obtained by fraud and falsification of material facts, but no evidence was presented to substantiate the allegations, which are of a criminal nature and attract a higher standard of proof. The court therefore declined to act on them.
Legal principles established
#- A litigant cannot hide behind an advocate's failure to attend court; the litigant has a duty to follow up on the case
- The discretion to set aside ex parte orders is unfettered but exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct justice
- Setting aside ex parte orders requires either improper service or sufficient cause for non-appearance
Court orders
#- 1.The application under determination dated 24/05/2023 has no merit and is dismissed.
- 2.The Application dated 17/05/2023 is equally dismissed.
- 3.Costs will abide the outcome of the main suit.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; interlocutory applications under the Civil Procedure Act (Cap 21) and Civil Procedure Rules, 2010 (Orders 12, 19 and 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & another v Simple Pay Capital Limited & 2 others", Case Analysis (2023). Environment and Land Case Civil Suit E015 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18988/eng@2023-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.