[2023] KEELC 22391 (KLR)
The court found that although the applicant's previous counsel was served with the hearing notice by email and an affidavit of service was filed, the interests of justice warranted setting aside the ex parte proceedings to allow the applicant to be heard. The court was not persuaded by the applicant's claim of lack...
Source-derived case information.
- Citation
- [2023] KEELC 22391 (KLR)
- Parties
- Plaintiff: Erick Obaga Boburia; Defendant: Domisiano Boburia Atandi; Defendant: Michael Ombongi Kwaba; Defendant: Samwel Gesora Atandi; Defendant: Vincent Bagwasi; Defendant: Aenn Nyambane Nyatwongi; Defendant: Land Registrar – Kisii County; Defendant: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 38 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Proceedings
- Outcome
- application allowed with conditions
- Judges
- M Sila
- Legal Topics
- Setting Aside Ex Parte Proceedings, Service of Process, Land Succession Disputes, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Obaga Boburia
Plaintiff
Domisiano Boburia Atandi
Defendant
Michael Ombongi Kwaba
Defendant
Samwel Gesora Atandi
Defendant
Vincent Bagwasi
Defendant
Aenn Nyambane Nyatwongi
Defendant
Land Registrar – Kisii County
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Proceedings
Legal Issues
- 1 Whether the ex parte proceedings of 19 September 2023 should be set aside to allow the 2nd defendant to be heard.
- 2 Whether the applicant's previous counsel was properly served with the hearing notice.
- 3 Whether the applicant should pay throw away costs as a condition for setting aside the proceedings.
Ratio Decidendi
The court found that although the applicant's previous counsel was served with the hearing notice by email and an affidavit of service was filed, the interests of justice warranted setting aside the ex parte proceedings to allow the applicant to be heard. The court was not persuaded by the applicant's claim of lack of service but exercised its discretion to prevent the applicant from being shut out from the seat of justice. The setting aside was made conditional upon the applicant paying throw away costs of Kshs. 7,500 to the plaintiff within 30 days, failing which the ex parte proceedings would stand and the matter would proceed to judgment.
Court Disposition
application allowed with conditions
Orders
- The ex parte proceedings of 19 September 2023 are set aside, subject to the applicant paying throw away costs of Kshs. 7,500 to the plaintiff within 30 days.
- If the costs are not paid within 30 days, the ex parte proceedings of 19 September 2023 will stand and the matter will proceed to judgment.
Full Case Text
Judgment text and source record
34 paragraphs
Boburia v Atandi & 6 others (Environment & Land Case 38 of 2019) [2023] KEELC 22391 (KLR) (14 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22391 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Case 38 of 2019
M Sila, J
December 14, 2023
Between
Erick Obaga Boburia
Plaintiff
and
Domisiano Boburia Atandi
1st Defendant
Michael Ombongi Kwaba
2nd Defendant
Samwel Gesora Atandi
3rd Defendant
Vincent Bagwasi
4th Defendant
Aenn Nyambane Nyatwongi
5th Defendant
Land Registrar – Kisii County
6th Defendant
Hon. Attorney General
7th Defendant
Ruling
(Application to set aside ex parte proceedings; application allowed but subject to payment of throw away costs) 1. The application before me is that dated 18 October 2023 filed by the 2nd defendant in this suit. He seeks to set aside the ex parte proceedings of 19 September 2023, when the matter proceeded in his absence, and for the hearing of the case to start de novo.
2. To put matters into context, this suit was commenced through an Originating Summons filed on 20 November 2020. The plaintiff is son of the 1st defendant, one Domisiano Borura Atandi. His averred that his grandfather, one Atandi Makori, owned the land parcel Central Kitutu/Mwamosioma/915, and this land was registered in his name at the time of his death in 1994. He complains that without undergoing succession, this land was subdivided and the resultant subdivisions registered in name of the 1st – 4th defendants. In the suit, the plaintiff seeks cancellation of the resultant subdivisions so as to have the land revert back to the land parcel Central Kitutu/Mwamosioma/915.
3. The applicant herein, named as 2nd defendant in the suit, filed a reply to the Originating Summons, opposing the case through the law firm of M/s Ochoki & Company Advocates. On 1 November 2022, I directed the case to proceed for hearing on 25 April 2023 and directed counsel for the plaintiff to serve hearing notices upon the defendants. I however did not sit on 25 April 2023 and I caused a notice to be published re-scheduling the hearing dates with this case fixed for hearing on 19 September 2023. On the hearing date, only Mr. Sagwe, learned counsel for the plaintiff was present. There was no appearance on the part of the defendants and the matter proceeded ex parte upon which the plaintiff closed his case. I directed parties to file their final submissions and listed the case for mention on 26 October 2023 but before that date, this application was filed on 18 October 2023. It has been filed by the law firm of M/s Ochwangi & Company Advocates who have taken over the conduct of the matter from M/s Ochoki & Company Advocates for the applicant through a notice of change of advocates filed alongside the application. I have already mentioned that it is an application seeking to set aside the ex parte proceedings and to have the case start afresh. The application is based on the grounds that the applicant’s erstwhile counsel was not served for the hearing and that the purported service upon his said counsel is suspect. He states that he has a good case and deserves to be heard. In his supporting affidavit, he avers that he has been unwell for some time and never got any communication from his previous advocates.
4. On 26 October 2023, I gave counsel for the plaintiff time to reply to the application but nothing was filed. I declined to extend time when the matter came up before me on 14 November 2023. It follows that there is no reply to the application.
5. I have considered the application. The application is mainly based on the ground that the applicant’s erstwhile counsel was not served. As I had earlier mentioned the case was initially fixed for hearing on 25 April 2023, when I did not sit and notice was published that this case would proceed for hearing on 19 September 2023. In addition to the notice, the court process server also served a hearing notice by email to the applicant’s erstwhile counsel and filed an affidavit of service to that effect. I am therefore not persuaded by the reasons that counsel for the applicant was not aware of the hearing date. I am however willing to allow the proceedings to be set aside so that the applicant is not shut out from the seat of justice. He will however pay to the plaintiff throw away costs of Kshs. 7,500/= within 30 days of today.
6. Thus, this application is allowed but subject to payment of throw away costs of Kshs. 7,500/= payable within 30 days of today. If the costs are not paid as directed, the proceedings of 19 September 2023 to stand and the matter will proceed to judgment.
7. Orders accordingly.
DATED AND DELIVERED AT KISII THIS 14 DAY OF DECEMBER 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISII