Kenya Case Law

Logitac Global Logistics Limited v Rentworks East Africa Limited

Logitac Global Logistics Limited v Rentworks East Africa Limited [2023] KEHC 24740 (KLR)

Court

High Court

Case number

Commercial Case 342 of 2017

Judge

MN Mwangi

The court found that service of the amended plaint on the defendant's advocates, who had entered appearance, constituted proper and sufficient service under the Civil Procedure Rules. The default judgment entered was therefore regular and lawful. However, the court exercised its discretion to set aside the default judgment, finding that the defendant's failure to file a defence in time was due to excusable mistake by its advocates and not a deliberate attempt to obstruct justice. The court further held that the defendant's defence raised bona fide triable issues, including the computation of…

Source excerpt

• Setting Aside Default Judgment
• Service Of Pleadings
• Triable Issues
• Judicial Discretion
• Mistake By Advocate

Sundor v Jitegemee Sacco Society Limited

Sundor v Jitegemee Sacco Society Limited [2023] KECPT 403 (KLR)

Court

Cooperative Tribunal

Case number

Tribunal Case E008 of 2022

Judges

BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol

The Tribunal set aside an interlocutory judgment after finding the respondent’s advocate made a genuine filing mistake, and allowed defence out of time.

• Setting Aside Judgment
• Stay Of Execution
• Service Of Process
• Mistake By Advocate
• Setting-aside-judgment
• Stay-of-execution

Corporate Insurance Company Limited v Rainbow Cabs & Car Hire Limited

Corporate Insurance Company Limited v Rainbow Cabs & Car Hire Limited [2022] KECA 1233 (KLR)

Court

Court of Appeal

Case number

Admiralty Cause 352 of 2012

Judges

HA Omondi, KI Laibuta, PM Gachoka

The Court found that the appellant's advocate made two mistakes: misdiarizing the hearing date and failing to file the hearing notice. While such mistakes should be avoided, the Court held that it would be harsh to deny the appellant access to justice, especially since the application for reinstatement was filed within the statutory period. The absence of opposition from the respondent and the promptness of the application weighed in favor of granting the reinstatement. The Court emphasized that justice should not be sacrificed due to an advocate's honest mistake, provided there is no undue d…

Source excerpt

• Reinstatement Of Appeal
• Dismissal For Non Attendance
• Court Of Appeal Rules
• Mistake By Advocate

Simon Chogi Gatuma v Peter Kagunyu Kiragu

Simon Chogi Gatuma v Peter Kagunyu Kiragu [2022] KEELC 1339 (KLR)

Court

Environment and Land Court

Case number

Environment & Land Case 189 of 2017

Judge

BC Koech

The court found that the failure of the defendant's advocate to attend the hearing on 16/11/2020 was due to an excusable mistake in diarizing the date, as evidenced by the annexed diary extracts. There was no evidence of deliberate delay or intent to pervert justice by the applicant. The court held that mistakes by counsel, even if unfortunate, should not bar a party from being heard if the interests of justice so dictate. The court exercised its discretion under Order 12 Rule 7 of the Civil Procedure Rules and in line with Article 159(2)(a) of the Constitution to set aside the orders closing…

Source excerpt

• Setting Aside Ex Parte Orders
• Non Attendance At Hearing
• Judicial Discretion
• Mistake By Advocate

Rashid Mohamed Salim, . Ahmed Mohamed Suleiman, Mohamed Suleiman Shaqsy (Suing as the Trustees of Mazrui Community Development and Welfare) WAKF Lands Trust and Members of the Mazrui Community) & Mombasa Cement Limited v Abdulgaffur Pasta

Rashid Mohamed Salim, . Ahmed Mohamed Suleiman, Mohamed Suleiman Shaqsy (Suing as the Trustees of Mazrui Community Development and Welfare) WAKF Lands Trust and Members of the Mazrui Community) & Mombasa Cement Limited v Abdulgaffur Pasta [2020] KEELC 1617 (KLR)

Court

Environment and Land Court

Case number

Environment & Land Case 165 of 2018

Judge

JO Olola

The court set aside a withdrawal order entered in error, holding that the mistaken notice should not prejudice the plaintiffs and reinstating the motion.

• Setting Aside Orders
• Withdrawal Of Suit
• Mistake By Advocate
• Reinstatement Of Suit
• Land Ownership Disputes
• Setting-aside-orders

Republic v Public Procurement Administrative Review Board, Independent Electoral & Boundaries Commission & Scanad Kenya Limited Ex-Parte Transcend Media Group Limited

Republic v Public Procurement Administrative Review Board, Independent Electoral & Boundaries Commission & Scanad Kenya Limited Ex-Parte Transcend Media Group Limited [2018] KEHC 8980 (KLR)

Court

High Court

Case number

Judicial Review 468 of 2017

Judge

GV Odunga

The court found that while not every mistake by an advocate justifies setting aside a dismissal, the discretion to do so exists and must be exercised judiciously. In this case, the applicant's failure to comply with directions was due to an excusable mistake by its advocate's pupil, and there was no evidence of serious prejudice to the respondent or interested parties if the proceedings were reinstated. The court balanced the interests of both sides and determined that justice would be served by setting aside the dismissal, reinstating the proceedings, and enlarging the time for filing submis…

Source excerpt

• Setting Aside Orders
• Judicial Review Procedure
• Discretion Of Court
• Mistake By Advocate

John Karuga Wahinya & Violet Wanja Gatei

John Karuga Wahinya & Violet Wanja Gatei [2017] KEELC 2397 (KLR)

Court

Environment and Land Court

Case number

Environment & Land Case 10 of 2009

Judge

EO Obaga

The court found that the failure by the defendant's advocate to attend the hearing was due to an inadvertent mistake by the law firm's receptionist, who failed to diarise the hearing date after receiving the notice. Both the advocate and the receptionist admitted and apologised for the error. The court held that the mistake was not deliberate and was not intended to obstruct or delay justice. Applying the principles from Shah v Mbogo, Phillip Chemwolo, and Belinda Murai, the court exercised its discretion to set aside the ex-parte orders to avoid injustice and to allow the matter to be heard…

Source excerpt

• Setting Aside Ex Parte Orders
• Mistake By Advocate
• Right To Be Heard
• Court Discretion

Municipal Council of Kisumu v Kenya Power & Lighting Company Limited

Municipal Council of Kisumu v Kenya Power & Lighting Company Limited [2016] KEHC 1152 (KLR)

Court

High Court

Case number

Civil Suit 119 of 2007

Judge

DAS Majanja

The High Court at Kisumu dismissed Kenya Power’s application to review and set aside judgment in a wayleave charges case, finding no apparent error or sufficient reason.

• Review Of Judgment
• Jurisdiction Of High Court
• Wayleave Charges
• Mistake By Advocate
• Setting Aside Judgment
• Review-of-judgment

Equity Bank Limited v Urbanus Kyong’oi Mule T/A Kanyangi Complex

Equity Bank Limited v Urbanus Kyong’oi Mule T/A Kanyangi Complex [2016] KEHC 8615 (KLR)

Court

High Court

Case number

Civil Suit 208 of 2011

Judge

OA Sewe

The High Court set aside a dismissal for want of prosecution and reinstated Equity Bank’s suit, accepting that service was declined by the advocate’s secretary and that the plaintiff was not indolent.

• Reinstatement Of Suit
• Dismissal For Want Of Prosecution
• Court Discretion
• Service Of Process
• Mistake By Advocate
• Loan Recovery

Bank of Africa Kenya Ltd v John Karanja Njenga

Bank of Africa Kenya Ltd v John Karanja Njenga [2016] KEHC 8591 (KLR)

Court

High Court

Case number

Civil Suit 420 of 2015

Judge

GL Nzioka

The court held that although the applicant's explanation for failing to enter appearance and file a defence was casual and unsupported by independent evidence, the draft defence raised issues that could not be dismissed as mere denials or a sham. In the interest of substantive justice and the right to be heard, and guided by the overriding objectives of the Civil Procedure Act and constitutional provisions, the court found it appropriate to set aside the interlocutory judgment. The court emphasized that parties should not be shut out from being heard unless their case is obviously hopeless, a…

Source excerpt

• Setting Aside Judgment
• Interlocutory Judgment
• Default Of Appearance
• Triable Issues
• Mistake By Advocate
• Right To Be Heard