[2017] KEELC 2679 (KLR)
The court found that the defendant provided a reasonable and uncontroverted explanation for his advocate's failure to attend court and comply with orders, namely prolonged illness. The court emphasized that the justice of a land matter requires both parties to be heard on the merits and that the defendant's defence...
Source-derived case information.
- Citation
- [2017] KEELC 2679 (KLR)
- Parties
- Plaintiff: Emily Chepng'eno Ruto (suing as the legal representative of the estate of David Kiplangat Ruto); Plaintiff: Richard K Chepkowny; Plaintiff: Peter K. Chepkowny; Plaintiff: Edward Chepkowny; Plaintiff: Eric Chepkowny; Plaintiff: Leonard Chepkowny; Plaintiff: Willy Chepkowny; Defendant: David Kiprono Koske
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 18 of 2012
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Order Striking Out Defence
- Outcome
- Application allowed; order striking out defence set aside; suit to be set down for hearing within 60 days; defendant to pay thrown away costs.
- Judges
- DO Ogal
- Legal Topics
- Setting Aside Orders, Interlocutory Judgment, Defence Reinstatement, Excusable Mistake, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Chepng'eno Ruto (suing as the legal representative of the estate of David Kiplangat Ruto)
Plaintiff
Richard K Chepkowny
Plaintiff
Peter K. Chepkowny
Plaintiff
Edward Chepkowny
Plaintiff
Eric Chepkowny
Plaintiff
Leonard Chepkowny
Plaintiff
Willy Chepkowny
Plaintiff
David Kiprono Koske
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Order Striking Out Defence
Legal Issues
- 1 Whether the defendant is entitled to have the order striking out his defence set aside.
- 2 Whether the defendant has provided a reasonable explanation for non-attendance and non-compliance with court orders.
- 3 Whether the interests of justice require the defendant to be heard on the merits.
Ratio Decidendi
The court found that the defendant provided a reasonable and uncontroverted explanation for his advocate's failure to attend court and comply with orders, namely prolonged illness. The court emphasized that the justice of a land matter requires both parties to be heard on the merits and that the defendant's defence raised triable issues. The court exercised its discretion to set aside the order striking out the defence, guided by the principles that such discretion should be used to avoid injustice or hardship and that mistakes of counsel should not prejudice the client. The court also ordered the defendant to pay thrown away costs to the plaintiffs for the inconvenience caused.
Court Disposition
Application allowed; order striking out defence set aside; suit to be set down for hearing within 60 days; defendant to pay thrown away costs.
Orders
- The order dismissing the defendant's defence is set aside.
- The suit shall be set down for hearing within the next 60 days.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT AT KERICHO
CIVIL SUIT NO. 18 of 2012
EMILY CHEPNG’ENO RUTO suing as the legal representative of the
estate of DAVID KIPLANGAT RUTO ………............................1ST PLAINTIFF
RICHARD K CHEPKWONY…………………………….….......2ND PLAINTIFF
PETER K. CHEPKWONY………………………………..….....3RD PLAINTIFF
EDWARD CHEPKWONY…………………………………........4TH PLAINTIFF
ERIC CHEPKWONY…………………………………...……….5TH PLAINTIFF
LEONARD CHEPKWONY……………………………...……...6TH PLAINTIFF
WILLY CHEPKWONY……………………………....................7TH PLAINTIFF
VERSUS
DAVID KIPRONO KOSKE……………….....…….DEFENDANT/APPLICANT
RULING
This Ruling is in respect of the Application dated 24th November, 2016. The said application is brought pursuant to Order 12 Rule 7 and Order 51 Rule I of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. The Defendant/Applicant seeks to set aside the order striking out the defendant’s defence on 24th October, 2016 and to have the said defence reinstated so as to allow the defendant to defend this suit.
The application is supported by the defendant’s affidavit sworn on the 24th November, 2016 in which he explains the events leading to the striking out of his defence the gist of which is that his advocate was sick over a period of time hence he failed to attend court and pay the adjournment costs ordered by the court.
The application is opposed by the Plaintiff and even though he did not file any Replying affidavit, his advocate filed his submissions in which he states that the defendant’s defence was struck out for non- compliance with the courts orders. He further submits that the applicant is merely attempting to forestall the conclusion of this matter. He eventually submits that in the event the dismissal is set aside, the defendant should be ordered to pay thrown away costs for the inconvenience caused to the plaintiff.
The main issue for determination is whether the defendant is entitled to the orders sought.
The principles governing the exercise of the court’s discretion to set aside interlocutory judgments/dismissals are laid out in the case of Patel V East Africa Cargo Handling Services Ltd (1974) EA 75as perDuffus P who stated as follows:
“The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgment as is the case here, the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on the merits does not mean in my view, a defence that must succeed, it means as SHERIDAN J put it “a triable issue”, that is, an issue which raises a prima facie defence and which should go to trial for adjudication”
Counsel for the Plaintiff has submitted that the defendant’s defence is a mere denial. With respect, I do not agree. The justice of this case, being a land matter requires that both parties be heard on the merits. From the explanation given by the defendant, which is uncontroverted, it is clear that his advocate did not deliberately fail to attend court as he was prevented from doing so due to a long period of illness. This is a reasonable explanation. In any event it is trite law the mistakes of an advocate should not be visited on his client.
I am further guided by the decision inMaina V Muriuki ( 1984 KLR 407) which held that the court’s discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error.
I am persuaded that the circumstances of this case fall within the parameters set out in the above cited authorities. I therefore set aside the order dismissing the defendant's Defence and direct that the suit be set down for hearing within the next 60 days. The Defendant shall however pay thrown away costs of Kshs. 20,000 for the inconvenience occasioned to the Plaintiff.
DATED, SIGNED AND DELIVERED THIS 16TH DAY OF JUNE 2017.
…........................
J. M ONYANGO
JUDGE
IN THE PRESENCE OF:
Miss Koech for Koske for the Applicant
N/A for the Respondent
Mr. Rotich – court assistant