Jeremiah Gitau & 2 others v Boniface David Chege & 33 others [2017] KEELC 41 (KLR)
The bottom line
#The Environment and Land Court dismissed an attempt to stop a land judgment, ruling the applicants were properly served and simply chose not to participate.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants were properly served with hearing and mention notices
The court record and affidavits of service established effective service on every occasion the court directed service
The court traced the proceedings from filing in Nakuru on 30th August 2016 through transfer to Nyahururu on 27th January 2017. Affidavits of service dated 16th September 2016, 29th September 2016 and 10th March 2017 evidenced service of the inter partes hearing, mention notice and hearing notice. The Applicants neither appeared nor filed responses despite service, and the claim that the matter was not listed on 29th May 2017 was contradicted by annexure BDC4.
Whether the Applicants demonstrated grounds warranting exercise of the court's discretion to stay judgment
The Applicants failed to explain their inordinate, inexcusable delay and failed to demonstrate a prima facie defence, so the discretion was not exercised in their favour
Applying Shah v Mbogo, the court found the Applicants deliberately evaded the proceedings: they never entered appearance, never filed a response, and only moved when judgment was imminent. The delay of 15 days after learning of the judgment date was itself unexplained. Although audi alteram partem requires a party not be condemned unheard, the court was not convinced the Applicants deserved the discretion.
Whether the further affidavit filed without leave should invalidate the application
No; the further affidavit introduced no new material and was superfluous, and refusing the application on that procedural ground alone would offend Article 159(2)(d)
Order 53 rule 4(2) permits further affidavits only on new matters arising from the other party's affidavits and on notice. The further affidavit of Jeremiah Gitau sworn 21st June 2017 was filed without leave, but the court found it added nothing new, so the procedural flaw was ignored under the overriding objective of Article 159(2)(d) of the Constitution.
Legal principles established
#- A litigant owes a duty to be vigilant of judicial proceedings pending against him and ignorance of the law is no excuse for failing to respond
- The discretion to set aside or arrest an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructs or delays the course of justice
Court orders
#- 1.The application dated 13th June 2017 is dismissed with costs to the Respondents/Petitioners
- 2.Judgment in Nyahururu ELC Petition No. 9 of 2017 to proceed for delivery on 28th June 2017 (stay/arrest of judgment refused)
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over proceedings pending before it; application stated no statutory provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Gitau & 2 others v Boniface David Chege & 33 others [2017] KEELC 41 (KLR)", Case Analysis (2017). Application by Notice of Motion dated 13th June 2017 in Nyahururu Environment and Land Court Petition No. 9 of 2017 (formerly Nakuru ELC Petition No. 42 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/41/eng@2017-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.