[2019] KEHC 1390 (KLR)
The court found that the explanation given by the applicant's counsel for non-attendance was persuasive and uncontroverted. There was no evidence of dishonesty or complicity, and no prejudice was demonstrated that would be suffered by the respondents if the ex parte orders were set aside. The court emphasized the...
Source-derived case information.
- Citation
- [2019] KEHC 1390 (KLR)
- Parties
- Appellant: Benson Irungu Mwangi; Appellant: Abraham Mwangi; Appellant: Eunice Nyambura; Respondent: Vincent Oduor Omuga; Respondent: Emerenzina Munyiva Makau Oduor; Respondent: Judith Abrahams Guserwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application to set aside ex parte orders allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Setting Aside Ex Parte Orders, Stay of Proceedings, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Irungu Mwangi
Appellant
Abraham Mwangi
Appellant
Eunice Nyambura
Appellant
Vincent Oduor Omuga
Respondent
Emerenzina Munyiva Makau Oduor
Respondent
Judith Abrahams Guserwa
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders made on 22nd July 2019 should be set aside, reviewed or varied.
- 2 Whether the non-attendance of the applicant's advocate constituted sufficient cause to warrant setting aside the orders.
- 3 Whether any prejudice would be occasioned to the respondents if the orders are set aside.
Ratio Decidendi
The court found that the explanation given by the applicant's counsel for non-attendance was persuasive and uncontroverted. There was no evidence of dishonesty or complicity, and no prejudice was demonstrated that would be suffered by the respondents if the ex parte orders were set aside. The court emphasized the importance of the right to be heard and held that mistakes by counsel, if genuine, should not be visited upon the litigant. Accordingly, the court exercised its discretion to set aside the orders made on 22nd July 2019, allowing the application to be heard inter partes, with costs awarded to the respondents.
Court Disposition
application to set aside ex parte orders allowed
Orders
- The orders made on 22nd July 2019 are set aside.
- The application dated 17th June 2019 shall be heard on a date to be agreed between the parties.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 33 OF 2019
BENSON IRUNGU MWANGI...........................................1ST APPELLANT
ABRAHAM MWANGI.......................................................2ND APPELLANT
EUNICE NYAMBURA.......................................................3RD APPELLANT
VERSUS
VINCENT ODUOR OMUGA..........................................1ST RESPODNENT
EMERENZINA MUNYIVA MAKAU ODUOR............2ND RESPODNENT
JUDITH ABRAHAMS GUSERWA................................3RD RESPONDENT
RULING
On 22nd July, 2019 the application by the applicant dated 17th June, 2019 was listed for hearing but only the counsel for applicant appeared. On submitting that no reply had been received relating to the application, and confirming the same from the court record, the court was persuaded that the application was unopposed and that the averments in the affidavit of supportthereof remained uncontroverted. For those reasons the application was allowed as drawn.
On 25th July, 2019 the respondent presented an application under certificate of urgency dated 23rd July, 2019 seeking the order that order made on 22nd July be set aside, reviewed and or varied. The reasons for seeking the said order are set out on the face of the application which included that, the nonattendance by the applicant’s advocate on that material day was not deliberate, and that the advocate was prevented by sufficient cause from appearing before the court. Above all, the applicant is interested in pursuing the case to its logical conclusion and therefore in the interest of justice, the orders should be granted.
There is a supporting affidavit sworn by the advocate for the applicant in which she said that, after service of the application the clerk failed to diarise the same, and the non-attendance was not intentional nor intended in the circumstances. The orders given on 22nd July were also said to be prejudicial to the applicant if not set aside.
The application is opposed and there is a replying affidavit sworn by the 1st defendant herein on behalf of the all the defendants. The thrust of the reply is that the application is frivolous, vexatious and an abuse of the court process and therefore it should be dismissed. There was no satisfactory reason given for non-attendance of the advocate and in any case, even at the time of filing the present application, no response had been made to the application that was allowed. Both counsel addressed the court orally in respect of the present application.
The application that was allowed sought the stay of proceedings in the lower court pending the hearing and of the intended appeal and that the lower court do stay vary or review its ruling made on 14th December, 2018 relating to the filing of the proposed amended defence by the defendants. The defendants in the lower court have filed an appeal following the ruling of the lower court dated 14th December, 2018 which is yet to be heard.
At the same time, I recognize rights of the parties to be heard before any determination is made by the court, provided that such a party does not participate in delaying the court process because in any case, courts exists to do justice. I also recognize the fact that a mistake by counsel should not be visited upon the litigant unless it is shown there was complicity between the two parties.
The explanation given by the counsel for the applicant herein is persuasive, in the absence of any evidence that there is no truth in that allegation. Above all, I have not seen any prejudice that has been demonstrated shall be visited upon the respondents if the order sought is granted. I believe that an order for costs under such circumstances should be sufficient to compensate the offended party, and in view of what I have said I am persuaded that the orders made on 22nd July 2019 should be set aside. It is so ordered.
The application dated 17th June 2019 shall therefore be heard on a date to be agreed between the parties. The costs of this application shall be paid by the applicants to the respondents.
Dated, signed and delivered at Nairobi this 19th day of December, 2019.
A. MBOGHOLI MSAGHA
JUDGE