[2018] KEHC 8729 (KLR)
The court found that although the applicant's counsel did not provide a direct explanation for his absence on the hearing date, it would be unjust to deny the applicant a hearing solely due to the mistake of counsel. The court emphasized that the right to be heard is fundamental and should only be denied as a last...
Source-derived case information.
- Citation
- [2018] KEHC 8729 (KLR)
- Parties
- Applicant: Laban Otiede Owino; Respondent: Elizabeth Chepkosgei; Respondent: Esther Chelagat
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 76 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Ex Parte Orders and Reinstate Summons for Revocation
- Outcome
- Application allowed; orders of 28th February, 2017 set aside; summons for revocation reinstated; applicant to pay throw away costs.
- Legal Topics
- Setting Aside Ex Parte Orders, Right to Be Heard, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Laban Otiede Owino
Applicant
Elizabeth Chepkosgei
Respondent
Esther Chelagat
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Ex Parte Orders and Reinstate Summons for Revocation
Legal Issues
- 1 Whether the court should set aside the orders issued on 28th February, 2017 and reinstate the summons for revocation for hearing on merit.
- 2 Whether the applicant should be penalized for the mistake of his counsel in failing to attend court.
Ratio Decidendi
The court found that although the applicant's counsel did not provide a direct explanation for his absence on the hearing date, it would be unjust to deny the applicant a hearing solely due to the mistake of counsel. The court emphasized that the right to be heard is fundamental and should only be denied as a last resort. Exercising its discretion under Order 12 Rule 7 of the Civil Procedure Rules, the court allowed the application to set aside the ex parte orders and reinstated the summons for revocation for hearing on merit, subject to the applicant paying throw away costs to the respondents.
Court Disposition
Application allowed; orders of 28th February, 2017 set aside; summons for revocation reinstated; applicant to pay throw away costs.
Orders
- The notice of motion dated 28th March, 2017 is allowed.
- Orders issued on 28th February, 2017 are set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
SUCCESSION CAUSE NO. 76 OF 2007
IN THE MATTER OF THE ESTATE OF KIMWENI OKETCH
BETWEEN
LABAN OTIENDE OWINO......................PETITIONER/APPLICANT
VERSUS
ELIZABETH CHEPKOSGEI.........1ST OBJECTOR/RESPONDENT
ESTHER CHELAGAT...................2ND OBJECTOR/RESPONDENT
RULING
1. By a notice of motion dated 28th March, 2017 brought under Order 12 Rule 7 of the Civil Procedure Rules, the applicant/petitioner prays for orders that:-
a. That the Honourable court be pleased to set aside orders issued on 28th February, 2017 and the summons for revocation be reinstated for hearing on merit
b. Costs be in the cause
2. The application is based on the grounds among others that failure to attend court by applicant’s counsel was not deliberate and that the petitioner was condemned unheard.
3. The application is supported by an affidavit sworn on 28th March, 2017 by the applicant’s advocate, Mr. Lore G. Omondi avers that he had been informed by the applicant that his previous advocate, Mr. Kouko for the applicant did not attend court because he was engaged in other matters before Majanja J. Attached to the supporting affidavit is this court’s order issued on 23rd February, 2017 and a copy of Mr. Kouko’s diary for the same date.
4. The application is opposed on the basis of a replying affidavit sworn by the 1st objector on 8th May, 2017 and filed on 8th May, 2017 in which she avers that Mr. Kouko has not filed an affidavit to explain his failure to attend court.
5. I have carefully considered the application in the light of the supporting and replying affidavits. Mr. Kouko, advocate for the applicant has not explained on 23rd February, 2017 when the application for revocation dated 18th May, 2015 was allowed. His mistake notwithstanding, it should be the court’s last resort to deny a party a chance to be heard on the basis of mistake of counsel.
6. Theoverridingobjectiveofthe lawis to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Under the powers granted to this court by Order 12 Rule 7 of the Civil Procedure Act, the court makes the following orders:
1. The notice of motion dated28th March, 2017is allowed
2. Applicant is condemned to pay Kshs. 5,000/- (Five thousand) throw away costs to the respondents within 14 days from today’s date.
DATED AND DELIVERED THIS 26th DAY OF January 2018
T.W.CHERERE
JUDGE
Read in open court in the presence of-
Court Clerk - Felix and Carol
Petitioner/Applicant - N/A
Objectors/Respondents - N/A