[2012] KEHC 959 (KLR)
The court found that although the applicant's counsel was responsible for failing to attend court on the scheduled hearing date, the nature of the dispute—being a land matter involving adverse possession—warranted that the applicant be given an opportunity to defend the claim on its merits. The court held that the...
Source-derived case information.
- Citation
- [2012] KEHC 959 (KLR)
- Parties
- Applicant: Jemeli Kanyei; Respondent: William Rotich Kipsang
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 37 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Proceedings and Revive Application
- Outcome
- Application allowed in terms of prayer 4; applicant to bear costs and thrown-away costs payable before trial.
- Judges
- AI Tullu
- Legal Topics
- Adverse Possession, Setting Aside Ex Parte Orders, Revival of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jemeli Kanyei
Applicant
William Rotich Kipsang
Respondent
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Proceedings and Revive Application
Legal Issues
- 1 Whether the ex-parte proceedings and orders issued on 4th, 19th, and 26th October 2006 should be set aside to allow hearing on merits.
- 2 Whether the omission of the applicant's counsel to attend court should be visited upon the applicant.
- 3 Whether the application to revive the plaintiff/respondent's Chamber Summons dated 20th April 2005 should be allowed.
Ratio Decidendi
The court found that although the applicant's counsel was responsible for failing to attend court on the scheduled hearing date, the nature of the dispute—being a land matter involving adverse possession—warranted that the applicant be given an opportunity to defend the claim on its merits. The court held that the omission of counsel should not be visited upon the applicant in this instance. Consequently, the court allowed the application to the extent of reviving the plaintiff/respondent's Chamber Summons for inter-partes hearing, but ordered that the applicant bear the costs of the application and all thrown-away costs, which must be paid before the trial proceeds.
Court Disposition
Application allowed in terms of prayer 4; applicant to bear costs and thrown-away costs payable before trial.
Orders
- The plaintiff/respondent's Chamber Summons Application dated 20th April 2005 is revived and to be heard inter-partes on merit.
- The applicant shall bear the cost of the application and all thrown-away costs, payable before the trial.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
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IN THE MATTER OF LAND PARCEL NO. CHERENGANY/KAPCHEROP/190 AND SECTION 38 OF THE LIMITAION OF ACTIONS ACT
JEMELI KANYEI………………….…………………..............APPLICANT
-VERSUS-
WILLIAM ROTICH KIPSANG……........……......................RESPONDENT
RULING
The Chamber Summons dated 21st November, 2006 brought under Order IXB Rule 8 and Order XXI Rule 91 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeks several substantive prayers, to wit;
2. The ex-parte proceedings of 4th October, 2006 and the order contained in the Court’s Ruling of 19th October, 2006 and/or the Court Order given and issued on 19th October, 2006 and 26th October, 2006 respectively be and are hereby set aside forthwith in favour of hearing the matter on merits.
3. Stay of execution of the Orders given and issued on 19th October, 2006 and 26th October, 2006 respectively and subsequent orders be and are hereby stayed pending the hearing and determination of this Application.
4. The Plaintiff’s/Respondent’s Chamber Summons Application dated 20th April, 2005 be and hereby revived and heard inter-partes on merit.
The Application is supported by the affidavit of William Rotich Kipsang sworn on 21st November, 2006. The decisions the Defendant seeks stayed were issued on 19th and 26th October, 2006.
The Application is opposed by the Plaintiff/Respondent, who has filed his Replying Affidavit sworn on 13th December, 2006.
The Defendant’s counsel failed to attend court on 4th October, 2006 despite the fact that the hearing date was taken in court by consent of the parties’ advocates. The advocate for the defendant failed to attend court on the material day and the Plaintiff proceeded to be heard ex-parte. The Defendant’s counsel contended that there was communication breakdown within his chambers resulting in failure to attend court on the day the matter was fixed for hearing.
I have considered the arguments presented before the Court. It is clear that the counsel for the Applicant is responsible the case proceedings in their absence. I would have made a different decision and condemned the counsel. However, this matter involves land which is sensitive matter and the Applicant ought to be given the opportunity to defend the claim based on adverse possession. The omission of his counsel ought not to be visited on him. I allow the Application dated 21-11-2006 in term of prayer 4. The Applicant shall bear the cost of the Application and all thrown-away costs payable before the trial.
Order accordingly.
DATED AND SIGNED AT NAIROBI ON THIS 8TH DAY OF AUGUST 2012
M. K. IBRAHIM
JUDGE
DATED AND DELIVERED AT ELDORET ON THIS 17TH DAY OF OCTOBER 2012
F. AZANGALALA
JUDGE
In the presence of: Mr. Onylwa h/b for Mr. Mitei for Plaintiff