[2019] KEELC 3264 (KLR)
The court found that the Defendant's failure to attend court was not intentional and was supported by documentary evidence. Given that the Defendant is in occupation of the suit land, the court exercised its discretion to set aside the ex-parte orders granted on 20th December, 2017. In the interest of justice and to...
Source-derived case information.
- Citation
- [2019] KEELC 3264 (KLR)
- Parties
- Plaintiff: Barnaba Malakwen Sawe; Defendant: Willy Kipchoge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 364 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- Application allowed. Ex-parte orders set aside. Status quo to be maintained until determination of the suit. Costs in the cause.
- Judges
- MAO Odeny
- Legal Topics
- Ex Parte Orders, Setting Aside Orders, Status Quo Orders, Occupation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barnaba Malakwen Sawe
Plaintiff
Willy Kipchoge
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex-parte orders granted on 20th December, 2017 should be set aside.
- 2 Whether an order for maintenance of status quo should be granted pending hearing and determination of the suit.
Ratio Decidendi
The court found that the Defendant's failure to attend court was not intentional and was supported by documentary evidence. Given that the Defendant is in occupation of the suit land, the court exercised its discretion to set aside the ex-parte orders granted on 20th December, 2017. In the interest of justice and to preserve the subject matter, the court substituted the ex-parte orders with an order for maintenance of status quo until the suit is heard and determined.
Court Disposition
Application allowed. Ex-parte orders set aside. Status quo to be maintained until determination of the suit. Costs in the cause.
Orders
- Ex-parte orders granted on 20th December, 2017 are set aside.
- An order for maintenance of status quo is granted until the suit is heard and determined.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND
AT ELDORET
ELC NO 364 OF 2016
BARNABA MALAKWEN SAWE........PLAINTIFF
VERSUS
WILLY KIPCHOGE..........................DEFENDANT
RULING
This ruling is in respect of the application dated 20th February, 2018 by the Defendant/Applicant seeking for orders of setting aside ex-parte orders made on 20th December,2017. The Defendant also seeks that an order of status quo be granted.
I have considered the reasons given by Counsel for the Applicant for not attending court when the orders were granted Ex-parte Counsel has annexed documentary proof that he had not put the matter in his diary and that failure to attend court was not intentional.
The Defendant is also in occupation of the suit land. I will therefore exercise my discrepancies and in the interest of justice set aside the Ex-parte orders granted on 20th December, 2017 and substitute it with an order of maintenance of status quo till this suit is heard and determined.
Costs in the cause.
Dated and delivered at Eldoret this 16th day of May, 2019
M.A ODENY
JUDGE