Automated Summary
Key Facts
China Wu Yi Company (K) Limited (defendant/applicant) filed a motion to set aside ex parte orders made on 3 March 2020, arguing their counsel (Mr. Kwame Ramo) missed the hearing due to a genuine scheduling conflict with another court matter. The plaintiff (Yang Guan Property Design & Manufacturing Limited) countered that the applicant failed to demonstrate prejudice from the orders and accused counsel of negligence. The court allowed the motion, set aside the ex parte orders, and reinstated the original application dated 18 February 2020 for determination on merit.
Issues
- The court examined whether the applicant could demonstrate prejudice from the ex parte orders of 3 March 2020. The applicant argued that the orders, if not vacated, would hinder their ability to present their case on the 18 February 2020 application, while the respondent maintained that no prejudice would occur and the orders would expedite the matter.
- The court evaluated whether the applicant's counsel's failure to attend on 3 March 2020 was due to negligence or a genuine mistake. The applicant provided an affidavit from counsel explaining the absence was caused by an unavoidable clash with another court hearing, while the respondent argued this demonstrated a lack of interest and deliberate neglect.
- The court considered whether the ex parte orders made on 3 March 2020 should be set aside, given the applicant's counsel's absence due to a calendar clash. The applicant argued the non-attendance was not deliberate, citing case law on the court's discretion to revoke orders obtained by procedural failures. The respondent countered that the orders should not be vacated as no prejudice was demonstrated.
Holdings
- The court set aside the ex parte orders made on 3 March 2020.
- The application dated 18 February 2020 was reinstated for disposal on merit.
- The costs of the application were awarded to the cause.
Remedies
- The costs of the application were awarded to the applicant, with the court stating costs should be in the cause.
- The application dated 2020-02-18 was reinstated for disposal on merit, allowing the applicant to present their case.
- The court has set aside the orders made on 2020-03-03, which were granted ex parte, pending the hearing of the application.
Legal Principles
The court emphasized its discretion under Order 51 Rule 15 of the Civil Procedure Rules to set aside ex parte orders made due to genuine error or inadvertence, citing cases like Patel vs. E.A. Cargo Handling Services Ltd and Shah vs. Mbogo. The principle underscores that such discretion should avoid injustice but not benefit parties deliberately obstructing justice.
Precedent Name
- Patriotic Guards Ltd vs. James Kipchireir Sambu
- Shah vs. Mbogo
- Philip KeiptoChemwolo and Mumias Sugar Co. Ltd vs Augustine Kubende
- Central Organization of Trade Unions vs. Cabinet Secretary Ministry of Labour Social Security & Services & 2 Others
- Burhani Decorators & Contractors vs. Morning Foods Ltd & Another
- Samson Makubo Marigo vs. Permanent Secretary Ministry of Internal Security
- Patel vs. E.A. Cargo Handling Services Ltd
Cited Statute
- Civil Procedure Act, Chapter 21 of the Laws of Kenya
- Civil Procedure Rules, 2010
Judge Name
Olga Sewe
Passage Text
- [a] That the orders made herein on 3 March 2020 be and are hereby set aside; [b] That the application dated 18 February 2020 be and is hereby reinstated for disposal on merit; [c] The Costs of the application be costs in the cause.
- I am satisfied that the applicant has given a plausible explanation as to why its counsel was unable to be in court on 3 March 2020 when the impugned orders were given; and that the non-attendance by Mr. Ramo was neither negligent or deliberate.
- "The principle obviously is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure."