[2014] KEHC 6556 (KLR)
The court found that the applicant was not informed of the proceedings that led to the ex parte orders due to inadvertence on the part of her counsel, who failed to obtain timely instructions from the applicant, an elderly person with limited access to communication. The court held that denying the application would...
Source-derived case information.
- Citation
- [2014] KEHC 6556 (KLR)
- Parties
- Plaintiff: Mary Chepkemoi Teres; Defendant: Benjamin Arap Chesurut; Defendant: Kirobon Farmers Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 430 of 2013
- Procedural Posture
- Civil Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application allowed
- Judges
- L Waithaka
- Legal Topics
- Setting Aside Ex Parte Orders, Judicial Discretion, Service of Process, Land Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Chepkemoi Teres
Plaintiff
Benjamin Arap Chesurut
Defendant
Kirobon Farmers Limited
Defendant
Procedural Posture
Civil Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the ex parte orders granted on 19th May, 2010 should be set aside.
- 2 Whether the applicant is entitled to reinstatement of the decree dated 8th April, 2002.
- 3 Whether the applicant suffered injustice due to inadvertence or mistake of counsel.
Ratio Decidendi
The court found that the applicant was not informed of the proceedings that led to the ex parte orders due to inadvertence on the part of her counsel, who failed to obtain timely instructions from the applicant, an elderly person with limited access to communication. The court held that denying the application would result in injustice to the applicant, as she was deprived of an opportunity to be heard through no fault of her own. Exercising its discretion, the court set aside the ex parte orders granted on 19th May, 2010, to ensure that the applicant is not unfairly prejudiced by her counsel's mistake.
Court Disposition
application allowed
Orders
- The ex parte orders granted on 19th May, 2010 are set aside.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
ELC CIVIL CASE NO. 430 OF 2013
MARY CHEPKEMOI TERES………………….…....PLAINTIFF
VERSUS
BENJAMIN ARAP CHESURUT………..….1ST DEFENDANT
KIROBON FARMERS LIMITED……………2ND DEFENDANT
RULING
The Applicant, Mary Teres Kositany,filed a Notice of Motion dated 29th July, 2012 seeking the following orders:-
1) spent
2) That this Honorable Court be pleased to set aside the Ex parte Orders granted on 19th May, 2010 and consequently reinstate the Decree dated 8th April, 2002.
3) spent
5) That costs of the application be in the cause.
The Application is premised on the grounds set out therein and is supported by an affidavit sworn by the Applicant and dated 29th July, 2012. She deponed that she is the rightful owner of 14 acres comprised in land reference number 545/111 having obtained a judgment and decree in her favour; that subsequently the respondents successfully applied to have the judgment set aside ex-parte; the applicant avers that she was not informed by counsel nor did she instruct the counsel.
Despite service of the application to the respondents, the respondents did not file any response.
I have considered the said application and written submissions filed by the Applicant on 6th November, 2013.
The principles guiding the setting aside of ex-parte judgments were comprehensively dealt with by the Court of Appeal in CMC Holdings Limited vs Nzioki [2004]1 KLR 173 where it was held that:
“In an application for setting aside ex parte judgment, the court exercises its discretion in allowing or rejecting the same. That discretion must be exercised judiciously... in law the discretion that a court of law has, in deciding whether or not to set aside ex parteorder was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst others an excusable mistake or error. It would not be proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error. Such an exercise of discretion would be wrong principle.
In our instant case, counsel submitted that he was not present in court when the respondent's application came up for hearing. He had however engaged a counsel with instructions to adjourn the matter in order to allow him seek further instructions from his client (the applicant herein). The court ruled that the reason adduced was not sufficient and ordered the application to proceed immediately. It was counsel's submission that the applicant is an elderly person and not readily reachable through modern communication and only relies on information from her relatives. I do believe that if this was clearly brought out on the date of hearing, the presiding judge would have reached a different conclusion.
For this reasons, I do find that if the court does not exercise its discretion, an injustice shall be visited upon the applicant as a result of inadvertence on the part of her counsel. It is my view that the counsel ought to understand the peculiar circumstances of her client. However, it may be difficult as submitted by counsel, to get instructions on time.
As a result, I do hereby allow the application and set aside the Ex parte orders granted on 19th May, 2010. Costs of this application to be in the cause.
Dated, signed and delivered on this 14th day of February 2014.
L N WAITHAKA
JUDGE.
PRESENT
Mrs Mbeche holding brief for Mr Kipkoech for plaintiff/applicant
N/A for Defendant/Respondent
Emmanuel Maleo: Court Clerk
L N WAITHAKA
JUDGE