Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 2126 of 2014· [2020] KEELRC 520 (KLR)

Gordon Otieno Omatch v Ismael Elisha Eshikote t/a High Class Auctioneers; West Hood Hotel (Judgment Debtor); Winnie Wambui Kariiyu & 5 others (Objectors) [2020] KEELRC 520 (KLR)

Employment and Labour Relations Court
28 August 2020
1,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court set aside orders made when a party missed hearing because the case wasn't listed, but paused debt recovery until the dispute is resolved.

What this practically means

#

Executive summary

#
The decree holder, Gordon Otieno Omatch, applied by notice of motion dated 23.04.2020 under Articles 47, 48, 50 and 159 of the Constitution, Section 3A of the Civil Procedure Act and Order 12 rule 7 of the Civil Procedure Rules, seeking to vacate or set aside the proceedings and orders issued on 04.03.2020, by which the objectors' application dated 24.02.2020 had been allowed in its entirety as unopposed, and to be granted an opportunity to respond to that application. His counsel explained that on 04.03.2020 the matter was not listed on the daily cause list, making it impossible to trace the court, and that the omission was inadvertent. The objectors, through Kimandu & Ndegwa Advocates, opposed, contending they were duly served, that the non-listing was a normal occurrence, and that their evidence (exhibits MMK4 and MMK5) showed the objector West Wood Hotel is a different entity from the judgment debtor, so reopening the application would cause them injustice. Relying on Mativo J in Wachira Karani v Bildad Wachira, Byram Ongaya J found the non-listing a genuine reason for setting aside, and that triable issues had been raised. However, applying the principle that justice cuts both ways, the judge balanced the decree holder's restored right to be heard against the objectors' position by ordering a stay of execution pending hearing of the objectors' application. The court set aside the proceedings and orders of 04.03.2020, deemed the decree holder's replying affidavit of 11.03.2020 duly filed and served, directed the parties to take steps for directions on the expeditious hearing of the objectors' application, and ordered the costs of the application to abide its outcome. Judgment was delivered at Nairobi by video link on 28th August 2020.

Key legal issues

#
01

Whether non-attendance due to the matter not appearing on the daily cause list justifies setting aside orders made in the party's absence

Holding

Yes, the court found this a genuine and sufficient reason for setting aside the ex parte orders of 04.03.2020

Reasoning

The court accepted as undisputed that counsel failed to attend because the matter was not on the cause list, making it difficult to trace the court. Relying on Mativo J in Wachira Karani v Bildad Wachira, it held that denying a hearing to a party with a reasonable and excusable reason would be a miscarriage of justice. It found triable issues raised in the decree holder's replying affidavit, so the merits should be determined after full inter partes hearing.

p. 2
02

Whether Article 159 and the oxygen principles require setting aside without conditions

Holding

No; justice must cut both ways, so the setting aside was conditioned with a stay of execution pending determination of the objectors' application

Reasoning

The objectors relied on Waki JA in the JKUAT case that Article 159 is not a licence to overthrow procedural rules, and on Mumbi Ngugi J that justice cuts both sides. The court agreed, noting the objectors claim to be a different entity from the judgment debtor, and balanced the decree holder's restored right to be heard against the objectors' exposure by ordering a stay of execution.

p. 2
03

Whether the merits of the decree holder's opposition to the objectors' application should be determined at this stage

Holding

No; the proper stage is after full hearing of the objectors' application

Reasoning

The court held that the decree holder had demonstrated triable issues through its replying affidavit, and that the proper stage to determine those issues on the merits is after the hearing of the objectors' application dated 24.02.2020. It therefore confined itself to restoring the matter to inter partes hearing and preserving the status quo via the stay.

p. 2

Legal principles established

#
  • A party whose matter was not listed on the daily cause list, resulting in non-attendance, has a genuine reason warranting setting aside of proceedings taken in its absence
  • Where a party shows reasonable and excusable grounds for non-attendance and a desire to be heard, it is a miscarriage of justice to deny that party a hearing

Court orders

#
  1. 1.The proceedings and orders given by the Court on 04.03.2020 and all proceedings flowing therefrom are set aside or vacated
  2. 2.The decree holder's replying affidavit filed on 11.03.2020 is deemed duly filed and served
  3. 3.Stay of the execution process as initiated against the objectors pending hearing and determination of the objectors' application dated 24.02.2020
  4. 4.The parties to forthwith take steps for directions on the expeditious hearing and determination of the objectors' application dated 24.02.2020
  5. 5.Costs of the application to abide the outcome of the objectors' application

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 47, 48, 50 & 159
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 12 rule 7

Cases cited (4)

  • Haji Ahmed Sheikh t/a Hasa Hauliers v Highway Carriers Ltd
    (1982 - 88)1 KAR 1184
  • Peter Kiplagat Rono v Family Bank Limited
    (2018) eKLR
  • The Council, Jomo Kenyatta University of Science and Technology v Joseph Mutuura Mbeere & Three Others
    [2015] eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
Jurisdiction invoked
Articles 47, 48, 50 & 159 of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act; Order 12 rule 7 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gordon Otieno Omatch v Ismael Elisha Eshikote t/a High Class Auctioneers; West Hood Hotel (Judgment Debtor); Winnie Wambui Kariiyu & 5 others (Objectors) [2020] KEELRC 520 (KLR)", Case Analysis (2020). Cause No 2126 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/520/eng@2020-08-28

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