[2017] KEELC 407 (KLR)
The court found that although the defendants' counsel was guilty of indolence for failing to attend the hearing, the defendants themselves should not be punished for their counsel's mistake. Applying the principles from Shah v Mbogo & Another and Patel v E.A. Cargo Handling Services Ltd, the court exercised its...
Source-derived case information.
- Citation
- [2017] KEELC 407 (KLR)
- Parties
- Plaintiff: Kipkemboi Kosgei; Defendant: Samuel Kipkoech; Defendant: Hillary Kibitok; Defendant: Julius Kiprop; Defendant: Barnaba Kiprotich; Defendant: Josephat Kiptoo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 135 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Proceedings
- Outcome
- application allowed
- Judges
- A Ombwayo
- Legal Topics
- Setting Aside Ex Parte Orders, Right to Be Heard, Mistake of Counsel, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipkemboi Kosgei
Plaintiff
Samuel Kipkoech
Defendant
Hillary Kibitok
Defendant
Julius Kiprop
Defendant
Barnaba Kiprotich
Defendant
Josephat Kiptoo
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Proceedings
Legal Issues
- 1 Whether the proceedings of 14.7.2017 and consequential orders should be set aside due to the absence of the defendants' counsel.
- 2 Whether the defendants should be punished for the mistake of their counsel.
- 3 Whether the suit should be re-opened to allow the defendants to cross-examine the plaintiff and tender their evidence.
Ratio Decidendi
The court found that although the defendants' counsel was guilty of indolence for failing to attend the hearing, the defendants themselves should not be punished for their counsel's mistake. Applying the principles from Shah v Mbogo & Another and Patel v E.A. Cargo Handling Services Ltd, the court exercised its discretion to set aside the ex parte proceedings and any consequential orders. The court emphasized that justice requires parties to be given an opportunity to be heard, and denying a litigant a hearing should be a last resort. The suit was therefore re-opened to allow the defendants to cross-examine the plaintiff and present their evidence, with costs awarded to the plaintiff in...
Court Disposition
application allowed
Orders
- The proceedings of 14.7.2017 and any consequential orders are set aside.
- The suit is re-opened for the defendants to cross-examine the plaintiff and tender their evidence.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 135 OF 2013
KIPKEMBOI KOSGEI……………..……………………………………….…………PLAINTIFF
VERSUS
SAMUEL KIPKOECH …………………………………………………………1ST DEFENDANT
HILLARY KIBITOK……………………..……………………………………..2ND DEFENDANT
JULIUS KIPROP…………………….………………………………………..3RD DEFENDANT
BARNABA KIPROTICH…………....…….....…………………………………4TH DEFENDANT
JOSEPHAT KIPTOO…………..….….......……………………………………5TH DEFENDANT
RULING
The application dated 20. 7.2017 seeks orders that this court be pleased to set aside its proceedings of 14. 7.2017 and any consequential orders made thereof and that the suit be re-opened for the defendants to cross examine the plaintiff and tender their evidence. The application is based on grounds as discerned from the supporting affidavit of Samuel Kipkoech who states that the matter was fixed for hearing on the 14th July, 2017 and all the parties were present in court including the defendants/applicants. The defendants’ counsel sought for time allocation however he never turned up on the scheduled time and therefore the plaintiff/respondent proceeded ex-parte and judgment was scheduled on the 5th October, 2017.
The defendants/applicants contend that they should not be condemned by the court for the mistakes of their counsel on record and that the defendants/applicants have a good defence. The defendants are the biological sons (children) of the plaintiff/respondent and therefore the subsequent orders are likely to adversely affect them and render them destitute or homeless. According to the defendants, this is the only land which their father is holding in trust of the family and that the plaintiff/respondent became hostile and cantankerous immediately their mother died. That it is in the best interest of justice that the orders sought are granted and the applicant be given a hearing. That this application has been brought promptly and in utmost good faith.
The plaintiff filed a replying affidavit stating that the matter was duly scheduled for hearing on 13. 7.2017 and that the defendants were duly served. On the date of hearing, the matter was given time allocation for purposes of proceeding at 12. 00 p.m. However, when the matter came for hearing at 12. 00, the defendants’ advocate was not present in court. The matter was scheduled for hearing at 2. 30 p.m. When the matter came for hearing at 2. 30 p.m., the defendants’ advocate failed to turn up hence the matter proceeded ex-parte.
I have considered the application and the response and do find that the defendants’ counsel attended court for hearing and then disappeared. The defendants’ counsel does not explain the failure to attend in the afternoon. The defendants’ counsel is guilty of indolence; however, this is a matter where the defendants should not be punished for the mistake of counsel. In the case of Shah –Vs- Mbogo & Another (1967)EA 116. It was held,
“the discretion to set aside an exparte Judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice”.
In the case of Patel -Vs- E.A. Cargo Handling Services Ltd, it was held,
“in considering an application to set aside an exparte Judgment, the nature of the action should be considered, the defence if any been brought to the notice of the court, however, irregularly, should be considered the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally it should be remembered that to deny a litigant a hearing should be the last resort of a court”.
Following the above laid down principles, I do exercise my discretion by allowing the application thus the proceedings of 14. 7.2017 and any consequential orders made thereof are hereby set aside and that the suit is re-opened for the defendants to cross examine the plaintiff and tender their evidence. Costs to the plaintiff in any event.
Dated and delivered at Eldoret this 22nd day of November, 2017.
A. OMBWAYO
JUDGE