Oketch & 3 others v Mudei & 5 others (Environment & Land Case E056 of 2019) [2025] KEELC 5029 (KLR)
The bottom line
#Kenya's High Court set aside an order closing defendants' case, ruling a lawyer's missed hearing shouldn't cost clients their day in court.
What this practically means
#Executive summary
#Key legal issues
#Competence of the application under Order 51
The application was not incompetent because the inherent jurisdiction under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution support it.
Although counsel for the Plaintiffs argued there is no provision for setting aside proceedings under Order 51, the Court held that the Defendants had also invoked Section 3A of the Civil Procedure Act, granting power to make orders necessary for the ends of justice, and that Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities.
Affidavit sworn by counsel
The supporting affidavit sworn by Mr Ashioya was admissible as it dealt with formal, non-contentious matters within his personal knowledge.
Rule 9 of the Advocates (Practice) Rules does not impose a blanket bar on counsel swearing affidavits. Only counsel could explain the failure to diarize the hearing date and inform the clients; the Defendants, absent when the date was taken before the Deputy Registrar, could not depone to those facts. The authorities of Hakika Transporters and Salama Beach supported this position.
Setting aside ex parte proceedings
The ex parte proceedings were set aside so the Defendants could testify and cross-examine, with throw away costs as a condition.
The non-attendance was conceded to be the mistake of counsel's office in failing to diarize the case. The Court held that a mistake of counsel should not be visited on innocent parties and that the wider interests of justice required the Defendants be given an opportunity to defend the claim, since judgment had not yet been delivered and no prejudice to the Plaintiffs was shown sufficient to outweigh that interest.
Legal principles established
#- There is no blanket bar against counsel swearing an affidavit in a matter in which he acts; counsel may swear affidavits on formal or non-contentious matters.
- Where only counsel can explain the non-attendance of himself and his clients at a hearing, an affidavit deponed by counsel on such factual matters within his knowledge is admissible.
Court orders
#- 1.The Court's order dated 24th September 2024 closing the 2nd, 3rd, 4th and 5th Defendants' case is vacated and set aside
- 2.The 2nd, 3rd, 4th and 5th Defendants shall pay to the Plaintiffs the sum of Kshs.10,000 as throw away costs within 14 days of the delivery of the ruling
- 3.The matter to be mentioned on 22nd July 2025 to take a date for the cross-examination of the Plaintiffs and for the Defendants' defences
- 4.In default of payment, the reinstatement order shall automatically lapse and the order issued on 24th September 2024 shall revert, with the Plaintiffs' counsel at liberty to file submissions and take a date for judgment
- 5.Costs of the application to the Plaintiffs
- 6.Mr Ashioya to confirm which of the Defendants he represents on the hearing date should the matter proceed to hearing
- Jurisdiction invoked
- Sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1, 4, 6, 10(1)(2) of the Civil Procedure Rules; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oketch & 3 others v Mudei & 5 others (Environment & Land Case E056 of 2019) [2025] KEELC 5029 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5029/eng@2025-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.