Hampton Ireri Murakaru v Mercy W Kirera & 2 others [2019] KEELC 121 (KLR)
The bottom line
#A Kenyan land court set aside orders made when lawyers missed a hearing due to Nairobi's matatu ban, confirming courts will protect the right to be heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants have shown grounds for the Court to exercise its discretion to set aside the orders of 4th December 2018
Key legal issues
#Whether the Applicants demonstrated sufficient grounds for the court to exercise its discretion to set aside the orders of 4th December 2018 made in their absence
The court allowed the application, finding the Applicants had adequately explained their late arrival due to the traffic gridlock caused by the Nairobi City County's matatu ban, and that the right to be heard should prevail.
The court applied Shah v Mbogi, holding that the discretion to set aside orders exists to avoid injustice from accident, inadvertence or excusable mistake. There was no contention against the matatu ban explanation. Although the Applicants had earlier been given a chance to be heard after ex-parte proceedings were set aside, intervening circumstances beyond their control caused their non-attendance. Prejudice to the Respondent was addressed by an award of throw away costs as a condition.
Legal principles established
#- Whether to set aside a court's order is an exercise of judicial discretion, to be exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructs or delays the course of justice.
- The right to be heard is a valued right; it would offend all notions of justice if a party's rights were prejudiced without an opportunity to be heard.
Court orders
#- 1.The orders of 4th December 2018 are set aside on condition that the Applicants pay throw away costs of Kshs.15,000/= to the Respondent within 7 days of the Ruling
- 2.Failing payment of the throw away costs within 7 days, the position will revert to what it was on 4th December 2018
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent discretion of the court to set aside its own orders (interlocutory civil jurisdiction of the Environment and Land Court); no specific provision invoked
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice
the right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard
I therefore allow the Applicants’ motion with the result that the orders of 4 th December 2018 are hereby set aside on condition that the Applicants pay throw away costs of Kshs.15,000/=to the Respondent within 7 days of this Ruling failing which the position will revert to what it was on 4th December 2018.
Issues in the judgment
#Internal date inconsistency: paragraph 2 states the mention date was fixed for 26th February 2016, though the hearing and application dates are December 2018, and the parties' filing details elsewhere suggest 2019.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hampton Ireri Murakaru v Mercy W Kirera & 2 others [2019] KEELC 121 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/121/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.