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ELCAllowedNotice of motion application dated 3rd April 2024· [2024] KEELC 6911 (KLR)

Kyungu & 4 others v Atangwa Clan & 10 others (Environment & Land Case 3 of 2021) [2024] KEELC 6911 (KLR)

Environment and Land Court (as constituted at Machakos)
16 October 2024
ANA. Nyukuri
867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a party who missed a hearing due to a diary mix-up to have the case reopened, but their lawyer must pay costs.

What this practically means

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Executive summary

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This was a notice of motion dated 3rd April 2024 by the plaintiffs seeking to reopen the defendants' case for cross-examination of witnesses after the defence hearing of 24th January 2024 proceeded ex parte in their absence. The 1st plaintiff, Christine Kanini Kyungu, deposed that her advocate's support staff misdiarized the hearing date, an inadvertent mistake which should not be visited on the client. The defendants opposed, arguing the motion was fatally defective, filed by a stranger absent a notice of change of advocates, that the supporting affidavit was defective, that failure to diarize was negligence rather than excusable mistake, and that the application was brought after inordinate delay. In a further affidavit the plaintiff showed a notice of change of advocates was filed on 18th January 2024 and that no prejudice would be suffered. The court framed a single issue: whether the applicant deserved the orders sought. Relying on Order 51 Rule 15 of the Civil Procedure Rules, the court held that setting aside an ex parte order is discretionary and must be exercised judiciously. Accepting the misdiarization explanation because the firm that fixed the hearing date was different from the firm then on record, the court held the right to be heard is a constitutional right and allowed the application as prayed, but compensated the defendants with thrown away costs of Kshs. 15,000/- payable by the plaintiffs' counsel within 30 days.

Key legal issues

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01

Whether the ex parte proceedings of 24th January 2024 should be set aside and the defence case reopened

Holding

The application was allowed. The court accepted that the plaintiff's advocate misdiarized the hearing date, noting that the firm that fixed the matter was different from the firm then on record, and held the plaintiff was entitled to be heard.

Reasoning

Order 51 Rule 15 empowers the court to set aside ex parte orders. The discretion must be exercised judiciously. The record showed the matter was fixed by O. N. Makau & Mulei Advocates, while Kithuka & Nafula Advocates came on record shortly before the hearing date, lending credence to the misdiarization claim. Since the denial of a hearing touches a constitutional right, the plaintiff was allowed to cross-examine, subject to thrown away costs to the defendants.

p. 3

Legal principles established

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  • Setting aside an ex parte order is discretionary and must be exercised judiciously; the right to be heard is a constitutional right, and where an application to reopen is allowed the other party should be compensated by costs

Court orders

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  1. 1.The plaintiffs' application dated 3rd April 2024 is merited and is allowed as prayed
  2. 2.The defendants' case to be reopened to allow for cross-examination of the witnesses
  3. 3.The plaintiffs' counsel to pay the defendants thrown away costs of Kshs. 15,000/- within 30 days
Jurisdiction invoked
Order 51 Rule 15 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, "Kyungu & 4 others v Atangwa Clan & 10 others (Environment & Land Case 3 of 2021) [2024] KEELC 6911 (KLR)", Case Analysis (2024). Notice of motion application dated 3rd April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6911/eng@2024-10-16

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