Julius Wahinya Kang’ethe & 1 other v Muhia Muchiri Ng’ang’a
The bottom line
#Kenya's Court of Appeal held that a lawyer's unexplained failure to attend a consent hearing date is not an excusable mistake and dismissed the landowners' appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the advocate's failure to attend a hearing date taken by consent was an excusable mistake not to be visited on the client
No. The advocate who had conducted the matter throughout offered no satisfactory explanation; the admission of a new partner did not change the character of the firm or excuse the oversight. Legal practitioners must shoulder the consequences of their negligent acts or omissions.
Mr. Kahari had appeared for the appellants since institution of the suit; the renaming of the firm upon admission of a new partner did not change the matter. His diary-inadvertence explanation was considered and rejected. Following Ringera, J in Omwoyo v African Highlands & Produce Co. Ltd, practitioners must bear the consequences of negligent omissions like other professionals. No reasonable explanation was given for absence on a consent date, so the mistake was not excusable.
The scope of the trial court's discretion to set aside a default judgment and the appellate standard of interference
The discretion is wide and unlimited and may be exercised on just terms, including conditions such as vacating the land and paying thrown away costs; an appellate court interferes only where irrelevant factors were considered, relevant ones ignored, or the decision is plainly wrong.
Applying Patel v E.A. Cargo Handling Services Ltd, there are no limits or restrictions on the judge's discretion except that any variation must be on just terms; a triable issue suffices rather than a defence that must succeed. Here the judge, though entitled to dismiss the applications, chose to recognise the right to be heard and set aside the judgment on conditions. The appellants showed no misdirection, so the discretionary decision stood.
Whether the appellants made out a case for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
No. They neither specified the limb of review relied upon nor satisfied any of the statutory grounds; no new material was placed before the court and no error apparent on the face of the judgment was demonstrated.
The law on review requires discovery of new and important matter after due diligence, a mistake or error apparent on the face of the record, or any other sufficient reason, without unreasonable delay. The Motion did not state the limb invoked. The complaint that special damages were unproved failed because evidence was led unchallenged and the judge was entitled to award on it. Review therefore could not succeed.
Whether the appeal could be used to impeach the substantive judgment of 17th February 2016
No. The judgment was never appealed and remains valid; the appeal lay only against the conditional setting-aside orders and the thrown away costs in the ruling, and allowing it would have the effect of setting aside an unappealed judgment.
The Notice of Appeal confined the appeal to the orders for vacant possession and thrown away costs. The judgment of 17th February 2016 had taken effect and was not challenged. The court accepted the respondent's submission that the appellants were attempting, through an appeal against the ruling, to set aside a judgment that had not been appealed - an impermissible route.
Legal principles established
#- Excusable mistakes of counsel should not be visited on their clients, but an advocate must give a reasonable and satisfactory explanation for failure to attend a hearing date taken by consent; absent such explanation, courts may decline to excuse the non-attendance
- The discretion of the trial court to set aside or vary a default judgment is wide and unlimited, exercisable on such terms as are just in light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties
- An appellate court will not interfere with a trial judge's discretion to set aside a judgment on conditions unless the judge considered irrelevant factors, failed to consider relevant factors, or reached a decision that is plainly wrong
- An applicant for review must specify and satisfy the statutory limbs under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules - discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason - without unreasonable delay
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Environment and Land Court at Nakuru
- ELC Case No. 253 of 2012
- Jurisdiction invoked
- Appeal against part of the ruling and order of the Environment and Land Court pursuant to the Notice of Appeal donating jurisdiction to the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Leteipa Ekedienye Ole Kisua & 2 others v Kisanda Kilanda Enterprises[2026] KECA 1166 (KLR)12 Jun 2026
- Juliana Mendembo & 1 other v Elizabeth Saringi Maranya[2026] KECA 64 (KLR)30 Jan 2026applied
- Salim Said Koi v Hatimy Group Limited[2025] KECA 1811 (KLR)7 Nov 2025applied
- Apa Homes (k) Limited v Nagieb Ali Omar & 1 other[2025] KECA 1035 (KLR)5 Jun 2025applied
Cite this brief
#Cite this brief
Caselaw, "Julius Wahinya Kang’ethe & 1 other v Muhia Muchiri Ng’ang’a", Case Analysis (2017). Civil Appeal No. 44 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/30/eng@2017-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.