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ELCPartially AllowedNot stated in the extract (Notice of motion dated 24th January, 2024)· [2024] KEELC 1472 (KLR)

Nakuru Citimega Limited v Kenya Farmers Association Ltd (Environment and Land Case 220 of 2013) [2024] KEELC 1472 (KLR)

Environment and Land Court
14 March 2024
AOA.O. Ombwayo
1,749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court gave a company another chance to defend its land dispute after missing a hearing, setting aside the judgment entered against it.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nakuru, delivered virtually by A.O. Ombwayo J on 14th March 2024, determined a Notice of motion dated 24th January 2024 by the Defendant (KFA Ltd), expressed to be brought under Order 12 rule 7 and Order 51 rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Articles 50(1) and 159(2) of the Constitution. The Defendant sought arrest/stay of the impending judgment slated for 1st February 2024, setting aside of the ex-parte proceedings and hearing of 8th December 2023 and all consequential judgment, decree or orders, and leave to defend the suit. The Defendant's managing director, Symon K Cherogony, deposed that the Plaintiff had repeatedly assured him the suit would be withdrawn and resolved amicably out of court, that key figures including Mr. Samuel Towett and both original advocates (Mr. Kiplenge and Mr. Kurgat) had died, and that the Christmas recess explained the delay in moving the court. The Plaintiff's director, Daniel Tuitoek, denied the assurances and asserted the hearing was fixed by consent. The Plaintiff filed no submissions. Framing the question as whether the ex-parte proceedings should be set aside, the court applied Shah v Mbogo and the Attorney General v Law Society of Kenya formulation of sufficient cause, held the right to be heard under Article 50 decisive, and allowed the application: ex-parte proceedings and all consequential judgment, decree and orders were set aside, the Defendant was granted leave to defend, and each party was ordered to bear their own costs of the application. The jurisdictional objection raised by the Applicant was not expressly resolved.

Key legal issues

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01

Whether the ex-parte proceedings of 8th December, 2023 should be set aside

Holding

Yes - the Applicant was found to merit an opportunity to defend the suit in the interest of justice under Article 50

Reasoning

The court weighed the Applicant's claim that it was assured the suit would be withdrawn or settled out of court, including the deaths of key advocates handling the matter, against the Respondent's claim that the hearing was fixed by consent. Invoking Article 50(1) and the Shah v Mbogo discretion, the court held it is in the interest of justice that the Applicant be heard, and set aside the ex-parte proceedings and all consequential judgment, decree and orders, granting leave to defend.

p. 4
02

Sufficient cause standard for setting aside ex-parte proceedings

Holding

Sufficient cause requires a rational, plausible, logical, convincing, reasonable and truthful explanation without unexplained gaps

Reasoning

The court adopted the Attorney General v Law Society of Kenya formulation, importing Black's Law Dictionary's definition of sufficient cause, and applied it to the Applicant's explanation of out-of-court settlement assurances, the death of counsel, and the Christmas recess explaining the delay in moving the court.

p. 4

Legal principles established

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  • The discretion to set aside an ex-parte judgment exists to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to reward deliberate obstruction or delay
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps in the sequence of events

Court orders

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  1. 1.The ex-parte proceedings and hearing dated 8th December, 2023 together with all and any consequential Judgment, Decree and orders are hereby set aside
  2. 2.The Defendant is hereby granted leave to defend this suit
  3. 3.Each party shall bear their own costs in respect of the application dated 24th January, 2024

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure ActSections 1A, 1B & 3A
  • Constitution of Kenya 2010Article 50(1)
  • Constitution of Kenya 2010Article 159(2)

Cases cited (7)

  • Patel vs E.A Cargo Handling services Ltd
    [1974] E.A 75
  • Shah v Mbogo and another
    [1967] EA 116
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Richard Nchapi Leiyagu v IEBC & 2 others
    [2013] eKLR
  • Multiscope Consulting Engineers v University of Nairobi & Another
    [2014] eKLR
  • Phoenix of E.A Assurance Company Limited v S.M Thiga t/a Newspaper Service
    [2019] eKLR
  • The Hon. Attorney General v the Law Society of Kenya & Another, Civil Appeal (Application) No. 133 of 2011 (ur)
Jurisdiction invoked
Order 12 rule 7 and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act; Articles 50(1) and 159(2) of the Constitution of Kenya, 2010

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, "Nakuru Citimega Limited v Kenya Farmers Association Ltd (Environment and Land Case 220 of 2013) [2024] KEELC 1472 (KLR)", Case Analysis (2024). Not stated in the extract (Notice of motion dated 24th January, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1472/eng@2024-03-14

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