Muhia Muchiri Ng’ang’a v Julius Wahinya Kangethe & 5 others [2016] KEELC 123 (KLR)
The bottom line
#A Kenyan court gave land owners one last chance to be heard, but only if they gave up possession and paid costs within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Setting aside ex-parte judgment where counsel failed to attend a hearing date taken by consent
The application by the 1st and 2nd defendants lacked merit; the hearing date was taken by their counsel's clerk and the firm's change of name did not excuse non-attendance
The date had been taken by consent with the law firm's clerk present. The court disbelieved the claim that counsel was unaware, noting no diary was exhibited and no inquiry made of the clerk. The litigants themselves were present on an earlier date and had a duty to follow up. The alleged mistake of counsel and invocations of natural justice and Article 40 did not assist them.
Service of summons on the 3rd to 5th defendants
The 3rd to 5th defendants were properly served and deliberately ignored the summons; no basis to set aside the judgment against them unconditionally
The plaintiff deposed that service on the 3rd to 6th defendants was effected in his presence by a process server, with confirmation from the server and the plaintiff's brother. No supplementary affidavit was filed to rebut this. The defendants had ample opportunity to come to court and deliberately failed to take it.
Conditional setting aside in the court's discretion
Although no merit was shown, the court set aside the judgment on conditions of ceding possession and paying thrown away costs, to protect the plaintiff's mesne profits claim
The court weighed the right to be heard against the prejudice to the plaintiff, noting the applicants' admitted financial inability to meet any monetary award, meaning continued stay on the land would render the mesne profits claim nugatory. Possession and thrown away costs within 30 days were imposed; default would revive the judgment.
Legal principles established
#- A litigant has a duty to keep track of his or her own case and cannot blame counsel alone for non-attendance
- A court may set aside an ex-parte judgment in its discretion even where no merit is shown, but may attach conditions to protect the successful party
Court orders
#- 1.The judgment of 17 February 2016 set aside on two conditions: handing over vacant possession of the land parcels and payment of thrown away costs, both to be met within 30 days
- 2.The 1st and 2nd defendants to vacate Nyandarua/Nandarasi/2307 and 2308 and hand over possession to the plaintiff within 30 days, failing which the judgment of 17 February 2016 will stand and may be executed
- 3.The 2nd to 5th defendants to vacate the land parcels registered in their names and hand over possession within 30 days, failing which the judgment will stand and may be executed
- 4.The judgment against the 6th defendant stands and may be executed by the plaintiff
- 5.Each applicant to pay thrown away costs of Kshs. 20,000/= to the plaintiff within 30 days, failing which the judgment will stand and may be executed against the party in default
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over a land dispute (former High Court suit transferred to the ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muhia Muchiri Ng’ang’a v Julius Wahinya Kangethe & 5 others [2016] KEELC 123 (KLR)", Case Analysis (2016). Nairobi High Court Civil Suit No. 1012 of 1988 (transferred to the Environment and Land Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/123/eng@2016-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.