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ELCDismissedNot stated in judgment (Machakos ELC suit; application dated 6th December, 2023)· [2024] KEELC 6855 (KLR)

George Waweru & 2 Others v Defendant/Respondent (Notice of Motion dated 6th December 2023)

Environment and Land Court
16 October 2024
1,360 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos refused to undo orders made in the plaintiffs' absence, saying their conduct showed deliberate delay, not an honest mistake.

What this practically means

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Executive summary

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The Plaintiffs moved the Court by Notice of Motion dated 6th December 2023 seeking to arrest a ruling scheduled for 14th December 2023, to stay execution of ex parte orders issued on 23rd October 2023, and to set aside those orders so as to defend the Respondent's eviction application. The 1st Plaintiff, George Waweru, deponed that the firm of Francis M. Kalwa Advocate had been retained to oppose the eviction; that counsel failed to attend court on 23rd October 2023 when the eviction application was allowed unopposed; that their advocate subsequently filed an application of 29th November 2023 without instructions, purporting to abandon the setting-aside application; and that the supporting affidavit's signature was a forgery. The Respondent opposed via Grounds of Opposition. The Court framed a single issue: whether the orders of 23rd October 2023 should be set aside. Relying on Shah v Mbogo, Wachira Karani v Bildad Wachira and CMC Holdings Limited v Nzioki, the Court reviewed the record showing counsel had repeatedly sought to withdraw the matter. It found the Plaintiffs had not proffered an affidavit from their erstwhile advocate, had not demonstrated sufficient cause, and were 'hell bent on bringing confusion'; the application amounted to an abuse of court process. The Court declined to set aside the orders of 23rd October 2023 and dismissed the application with costs.

Key legal issues

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01

Whether the ex parte orders of 23rd October 2023 should be set aside

Holding

Application dismissed; sufficient cause not demonstrated and the application amounted to abuse of court process

Reasoning

The court reviewed the proceedings showing plaintiffs' counsel repeatedly sought to withdraw the matter, and was absent when the eviction application was allowed. The plaintiffs disowned a subsequent application filed by their own advocate and alleged a forged signature, but proffered no affidavit from that advocate. Given the prior ruling dismissing their injunction application, the court found the plaintiffs were sowing confusion and failed to show sufficient cause.

p. 3

Legal principles established

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  • The discretion to set aside an ex parte order is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay the course of justice
  • Setting aside is discretionary and requires demonstration of sufficient cause

Court orders

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  1. 1.Declined to set aside the orders issued on 23rd October, 2023
  2. 2.Dismissed the Notice of Motion Application dated 6th December, 2023 with costs

Authorities

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Cases cited (3)

  • Shah v Mbogo and Another
    [1967] EA 116
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • CMC Holdings Limited v Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Inherent discretion to set aside ex parte orders (not expressly tied to a constitutional provision in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George Waweru & 2 Others v Defendant/Respondent (Notice of Motion dated 6th December 2023)", Case Analysis (2024). Not stated in judgment (Machakos ELC suit; application dated 6th December, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6855/eng@2024-10-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.