Bilasio Odhiambo Ogutu Petitioning as the Administrator of the Estate of the Late Ogutu Onyanga Ondiege v Senior Principal Magistrate Siaya Law Courts & another [2021] KEELC 2161 (KLR)
The bottom line
#A Kenyan court refused to reopen a land case won in the owner's absence, ruling his lawyer's inaction was not a good enough excuse.
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 applicant has given a good/sufficient reason for failure to attend court so as to warrant setting aside the ex parte judgment delivered on 21st April 2016
- 2.Whether the applicant has demonstrated a defence/response raising triable issues to justify reopening the petition
Key legal issues
#Whether the applicant gave a sufficient reason for failure to attend court
No sufficient reason was given; the applicant was duly served, entered appearance and had multiple opportunities to file a replying affidavit and submissions but failed to do so
Service was undisputed and the applicant entered appearance through Ochanda Onguru & Co. Advocates and later Omaya & Co. Advocates. The replying affidavit showed the applicant's counsel obtained adjournments, sought time to file a replying affidavit and submissions, and never did. No reason was tendered for the advocate's non-attendance, so the non-participation was inaction, not excusable mistake.
Whether the applicant demonstrated a defence raising triable issues
No; the applicant did not attach a draft defence or replying affidavit, so the court could not assess triable issues
Although the applicant argued he had a tangible response based on the procedural route the petitioner took from the Land Disputes Tribunal, no draft defence or replying affidavit was annexed. Following CMC Holdings v Nzioki and Tree Shade Motors v DT Dobie, the court is obliged to consider a draft defence to determine if it raises a reasonable defence; absent one, no such finding was possible.
Whether the missing court file justified the two-year delay in filing the application
The disappearance of the file explained only the delay in filing, not the failure to attend the hearing
The applicant attributed the delay to the original file going missing for close to two years, necessitating a reconstructed skeleton file. The court noted the applicant gave no explanation for why judgment was delivered without his participation and concentrated on the post-judgment file disappearance, which did not constitute sufficient cause for the non-attendance itself.
Legal principles established
#- On an application to set aside an ex parte judgment under Order 12, the court asks whether the applicant has given a good reason for failure to attend court and then considers whether the ex parte proceedings should be set aside
- An advocate's mere inaction is not an excusable mistake; the principal bears the consequences of the agent's failure to perform vested duties
- Article 159(2)(d) of the Constitution is not a cure for unexplained negligent commissions and omissions by parties and their advocates
- A party seeking to set aside an ex parte judgment must annex a draft defence showing triable issues
Court orders
#- 1.The applicant's notice of motion dated 26/04/2019 seeking to stay execution of and set aside the judgment of Hon. A.K. Kaniaru delivered on 21st April 2016 is dismissed
- 2.Costs of the application awarded to the petitioner/respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Siaya PM Chief Magistrate's Court (decision of Hon. A.K. Kaniaru in the petition)
- Petition delivered 21st April 2016; underlying Tribunal Case Siaya District Land Disputes Tribunal Case No. SYA/303/97 adopted in SIAYA PMCC NO. 196 OF 1997
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rules 1, 3 & 15 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the orders of Hon. A.K. Kaniaru made on 21st April 2016
Application found to lack merit; service was not disputed and no sufficient cause for non-attendance was shown
Setting aside of the ex parte judgment of 21st April 2016 and rehearing of the petition
Non-participation resulted from the inaction of the applicant's advocates, not from accident, inadvertence or excusable mistake, and no draft defence raising triable issues was annexed
Costs
Application dismissed with costs to the petitioner/respondent.
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.
Based on the above I do find that the application lacks merit and is dismissed with costs.
I am unable to make a finding that the non-participation by the applicant in the proceedings resulted from accident, inadvertence or excusable mistake or error. This was purely inaction on the part of the applicant's then advocates on record.
Article 159(2) (d) of the Constitution is not a cure to all sorts of negligent commissions and omissions by parties, so long as their actions are not satisfactorily explained to the court's satisfaction.
It is trite law that an advocate on record for a party in a suit has the ostensible authority and powers to represent the party and that all that is done by the advocate are actions of the party in question.
the only thing the Court needs to look at is whether the applicant had given a good reason for failure to attend Court and depending on the finding, then consider whether the exparte proceedings would be set aside or not.
Issues in the judgment
#The judgment states the petition was fixed for judgment on 21/04/2015 when judgment was delivered, yet the application and orders throughout refer to judgment delivered on 21st April 2016; the record contains both dates
The judgment refers to directions issued by the Chief Justice on 15th March 2019, whereas COVID-19 directions were commonly issued on 15th March 2020
The petitioner's counsel is described both as petitioner's advocate and at one point the applicant's counsel is referred to as 'Petitioner's advocate' in the chronology of the change of advocates
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bilasio Odhiambo Ogutu Petitioning as the Administrator of the Estate of the Late Ogutu Onyanga Ondiege v Senior Principal Magistrate Siaya Law Courts & another [2021] KEELC 2161 (KLR)", Case Analysis (2021). Kisumu ELC Petition (application dated 26/04/2019 arising therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2161/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.