Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2016] KEELC 491 (KLR)

Patrick Wakoli Sichangi & another v Patrick Makokha Bonyoli & 2 others [2016] KEELC 491 (KLR)

Environment and Land Court (Kenya)
13 September 2016
EOE. OBAGA
1,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court refused to undo a judgment issued in the defendants' absence, ruling they deliberately delayed justice rather than made an honest mistake.

What this practically means

#

Executive summary

#
This ruling by E. Obaga J of the Environment and Land Court at Kitale, delivered on 13 September 2016, disposed of an application by the defendants/applicants seeking to set aside an ex-parte judgment delivered on 27 January 2016 after a hearing which proceeded in their absence. The applicants blamed their former advocates, Mwinamo Lugonzo & Co. Advocates, for failing to inform them of the hearing date and argued that a mistake of counsel should not be visited on them. The respondents, through a replying affidavit sworn by Patrick Wakoli Sichangi, opposed the application as misconceived, contending the applicants' advocate knew of the hearing date but did not attend. The court framed a single issue: whether sufficient grounds existed to warrant setting aside the ex-parte judgment. It found the applicants were serially represented by holding-brief advocates, had not appealed the refusal of an adjournment on 13/10/2015, waited seven months to file the application, filed no counter-claim, and had closed a road of access while claiming part of the respondents' land, having themselves sold the suit land they now alleged was fraudulently titled. Adopting BMach Engineers Ltd v James Kahoro Mwangi and Shah v Mbogo, the court held the applicants were out to delay the course of justice and that no useful purpose would be served by setting aside the judgment. The application was dismissed with costs to the respondents.

Key legal issues

#
01

Whether sufficient grounds exist to set aside the ex-parte judgment

Holding

Application dismissed; the applicants deliberately delayed, failed to follow up their case and have no defence, so no useful purpose would be served by setting aside the judgment

Reasoning

The court held the applicants' former advocates never appeared personally but always sent holding briefs; the applicants were present during the survey which showed they had closed an access road and were claiming part of the respondents' land. They did not appeal the refusal of the adjournment, waited seven months, filed no counter-claim, and sold the suit land they now dispute.

p. 2

Legal principles established

#
  • A litigant has a duty to follow up their case with their advocate and cannot simply blame the advocate for not informing them of a hearing date
  • The discretion to set aside ex-parte judgment is exercised to avoid injustice from excusable mistake, not to assist those who deliberately obstruct or delay the course of justice

Court orders

#
  1. 1.The application seeking to set aside the ex-parte judgment delivered on 27/1/2016 is dismissed with costs to the respondents.

Authorities

#

Cases cited (2)

  • BMach Engineers Ltd -vs- James Kahoro Mwangi
    [2011] eKLR
  • Shah -vs- Mbogo
    [1967] EA
Jurisdiction invoked
Inherent discretionary jurisdiction to set aside ex-parte judgment (not expressly cited in the ruling)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Patrick Wakoli Sichangi & another v Patrick Makokha Bonyoli & 2 others [2016] KEELC 491 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/491/eng@2016-09-13

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