Okumu v Osalo & another (Environment and Land Case 52 of 2013) [2025] KEELC 6273 (KLR)
The bottom line
#A Kenyan court re-opened a land case after defendants missed a hearing through a mix-up, confirming courts treat denying a hearing as a last resort.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants' non-attendance was excusable
The non-attendance was not deliberate; the Defendants were likely misdirected to the wrong courtroom by the Customer Care Desk and their counsel had abandoned them
The court noted that the courtroom had previously been used by the Chief Magistrate's Court before becoming the ELC Court, lending credibility to the claim of confusion. The record showed the Defendants' former counsel, not the Defendants themselves, had been attending court. Condemning them unheard would occasion injustice.
Whether the Defendants were in contempt of the costs order
No; receipts proved payment of Kshs.19,000 to their former advocates, who failed to remit it to the Plaintiff's advocates
Annexures JOO1 and JOO2 confirmed payments of Kshs.3,000, Kshs.9,000 and Kshs.7,000 to Wanyama & Company Advocates, plus Kshs.6,000 paid directly to Maloba & Company Advocates. The Plaintiff's allegation of disobedience of the Kshs.24,000 order therefore could not stand.
Whether the ex parte proceedings and closure of the Plaintiff's case should be set aside
Yes; the orders closing the Defendants' case were set aside and the case re-opened solely for the Defendants to cross-examine the Plaintiff and mount their defence
Applying the principles in Sebei District Administration v Gasyali as adopted in Pithon Waweru Maina v Thuka Mugiria, the court held that denying a litigant a hearing should be a last resort, and that a defence brought to the court's notice should be considered even if irregularly.
Legal principles established
#- To deny a litigant a hearing should be the last resort of a court, having considered the nature of the action, the defence, and whether the plaintiff can be compensated by costs
- The principles for setting aside ex parte judgments apply equally where a party seeks to be heard on their defence after ex parte proceedings
Court orders
#- 1.The Court's orders issued on 11th March 2025 closing the Defendants' case and directing the Plaintiff to file his submissions are set aside
- 2.The case is re-opened but only for the Defendants to cross-examine the Plaintiff and to prosecute their defence
- 3.The hearing shall proceed on 3rd November 2025
- 4.The firm of Wanyama & Company Advocates shall within 30 days of the ruling remit to the firm of Maloba & Company Advocates the sum of Kshs.19,000 being part of the costs received and payable to the Plaintiff
- 5.Costs shall be in the cause
- Jurisdiction invoked
- Inherent jurisdiction of the court under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okumu v Osalo & another (Environment and Land Case 52 of 2013) [2025] KEELC 6273 (KLR)", Case Analysis (2025). Busia ELC Case (part-heard suit relating to land parcel No. Samia/Budongo/1699); Notice of Motion dated 21st March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6273/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.