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)
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
#Key legal issues
#Whether non-attendance due to the matter not appearing on the daily cause list justifies setting aside orders made in the party's absence
Yes, the court found this a genuine and sufficient reason for setting aside the ex parte orders of 04.03.2020
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.
Whether Article 159 and the oxygen principles require setting aside without conditions
No; justice must cut both ways, so the setting aside was conditioned with a stay of execution pending determination of the objectors' application
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.
Whether the merits of the decree holder's opposition to the objectors' application should be determined at this stage
No; the proper stage is after full hearing of the objectors' application
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.
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.The proceedings and orders given by the Court on 04.03.2020 and all proceedings flowing therefrom are set aside or vacated
- 2.The decree holder's replying affidavit filed on 11.03.2020 is deemed duly filed and served
- 3.Stay of the execution process as initiated against the objectors pending hearing and determination of the objectors' application dated 24.02.2020
- 4.The parties to forthwith take steps for directions on the expeditious hearing and determination of the objectors' application dated 24.02.2020
- 5.Costs of the application to abide the outcome of the objectors' application
- 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.