[2014] KEHC 1877 (KLR)
The court found that although the plaintiffs' advocate failed to attend court on 19th June 2014, the plaintiffs themselves were present and the absence of their counsel was attributed to ill health, albeit without supporting documentation. The court exercised its discretion to set aside the ex parte proceedings and...
Source-derived case information.
- Citation
- [2014] KEHC 1877 (KLR)
- Parties
- Plaintiff: Patrick Ongoya Webo; Plaintiff: William Okisai Ondegero; Plaintiff: Benson Barasa Sitabuka; Plaintiff: Rebecca Busolo; Plaintiff: Clare Kibaba; Defendant: Redemptor Nasike Simati; Defendant: Aneriko Masika Simiyu; Defendant: The Land Registrar; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 262 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Proceedings
- Outcome
- Application allowed with costs to the respondent; ex parte proceedings and dismissal of suit set aside.
- Legal Topics
- Setting Aside Ex Parte Orders, Dismissal for Want of Prosecution, Right to Be Heard, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Ongoya Webo
Plaintiff
William Okisai Ondegero
Plaintiff
Benson Barasa Sitabuka
Plaintiff
Rebecca Busolo
Plaintiff
Clare Kibaba
Plaintiff
Redemptor Nasike Simati
Defendant
Aneriko Masika Simiyu
Defendant
The Land Registrar
Defendant
The Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Proceedings
Legal Issues
- 1 Whether the ex parte proceedings and dismissal of the plaintiffs' suit on 19th June 2014 should be set aside.
- 2 Whether the plaintiffs' absence of counsel constituted sufficient cause for non-prosecution.
- 3 Whether the application to set aside constitutes an abuse of court process or is res judicata.
Ratio Decidendi
The court found that although the plaintiffs' advocate failed to attend court on 19th June 2014, the plaintiffs themselves were present and the absence of their counsel was attributed to ill health, albeit without supporting documentation. The court exercised its discretion to set aside the ex parte proceedings and the order of dismissal, emphasizing the constitutional right to be heard, especially in emotive land matters. However, the court penalized the plaintiffs for failing to take appropriate steps to prosecute their case and for wasting the defendant's time, awarding thrown away costs to the respondent and specific attendance costs to the defendant's advocate and the first...
Court Disposition
Application allowed with costs to the respondent; ex parte proceedings and dismissal of suit set aside.
Orders
- Ex parte proceedings of 19th June 2014 and dismissal of plaintiffs' suit set aside.
- Plaintiffs to pay respondent costs of the application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 262 OF 2014
1. PATRICK ONGOYA WEBO
2. WILLIAM OKISAI ONDEGERO
3. BENSON BARASA SITABUKA
4. REBECCA BUSOLO
5. CLARE KIBABA....................................................PLAINTIFFS
VERSUS
1. REDEMPTOR NASIKE SIMATI
2. ANERIKO MASIKA SIMIYU
3. THE LAND REGISTRAR
4. THE ATTORNEY GENERAL.............................DEFENDANTS
RULING
The Plaintiffs/applicants have moved this court by their application dated 9th July 2014 seeking to set aside the exparte proceedings of 19th June 2014. The application is opposed by the defendant through her replying affidavit. I have read the documents on record and considered the submissions offered. The events of 19th June 2014 are that this date was fixed by consent. The plaintiff's advocate nor his representatives appeared in court on that day. The plaintiff's were present except for the 1st and 5th plaintiffs. The matter was put off to proceed at 3 p.m to give the plaintiffs time to get in touch with their advocate. The said advocate did not appear on the time set and the plaintiffs declined to prosecute their case unless their advocate was present. The Plaintiff's case was therefore dismissed for want of prosecution and the court proceeded to hear the defendant's counter- claim. It is the order of dismissal of their suit and evidence of 1st defendant they want set aside so both parties can be heard.
The previous advocates on record Ms. Aburili & co. advocates has deposed a very sketchy affidavit indicating that his health is not good and he requires a lot of bed rest without any documentation to support that statement. This court is alive to the equitable doctrine that mistake of counsel should not be visited on a party. The plaintiffs have not told this court when they last spoke to their said advocate. The record also shows the plaintiffs are in the habit of changing advocates which has caused a delay in the conclusion of this case.
The respondent raised the issue that this matter is an abuse of the court process and res judicata the high court CA no. 94 of 1999 and court of appeal CA no. 227 of 2004. The proceedings before me now is an application to set aside the orders of 19th June 2014 so it cannot be res judicata orders made before the said proceedings had not taken place. On the aspect of abuse of the court process, setting aside is provided for in law and a party exercising that right cannot be accused of abusing the court process. Where the exercise of such is necessary. The applicant has not made any similar application.
I have taken into account all the issues raised and the law that setting aside is an exercise of discretion of the court. In the case cited by the respondent of Milimani civil case no. 43 of 1999, neither the plaintiffs nor their advocate attended court on the date set for hearing. In this instance, the plaintiffs were present without their advocate. The constitution grants parties right to be heard under article 50 (1). In this instance, it is a land matter which is generally emotive as it touches on livelihoods. It would be just in the circumstances to grant the plaintiffs an opportunity to present their case. However I will penalize them for not taking appropriate steps to prepare to prosecute their case on 19th June 2014 and for wasting the defendant's time. I will thus allow the application by setting aside the exparte proceedings of 19th June 2014 with the costs of the application awarded to the respondent. Further the plaintiffs will pay Mr. Ocharo advocate his attendance costs of 19th June 2014 assessed as Kshs. 15,000/= and 1st defendant's transport and lunch allowance of Kshs. 5,000/=. This total sum is awarded as thrown away costs to be paid within 30 days of the date of this ruling in default, execution to issue. It is so ordered.
DATED,and DELIVEREDat BUNGOMA this 7th day of October 2014
A. OMOLLO
JUDGE.