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ELCDismissedApplication 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)· [2017] KEELC 41 (KLR)

Jeremiah Gitau & 2 others v Boniface David Chege & 33 others [2017] KEELC 41 (KLR)

Environment and Land Court
28 June 2017
3,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a Notice of Motion dated 13th June 2017, filed in pending Environment and Land Court Petition No. 9 of 2017 (formerly Nakuru ELC Petition No. 42 of 2016), in which the Applicants sought to stay and/or arrest the writing and delivery of judgment scheduled for 28th June 2017, and to be invited to respond to the Petition. The application did not state the provisions under which it was brought. The Applicants, who were Respondents to the Petition, claimed they were never served with hearing notices, were unaware the matter had been transferred from Nakuru to Nyahururu, and did not know they were required to file a response. The Respondents/Petitioners opposed, relying on affidavits of service on the record, the cause list showing the matter was listed on 29th May 2017, and authorities establishing that a party seeking to set aside an ex parte judgment must demonstrate a defence. The court traced the entire proceedings, finding service had been effected on every occasion directed, that the Applicants knew of the transfer to Nyahururu, and that counsel's claim that the matter was not listed was untruthful. Applying Shah v Mbogo, the court held the Applicants had deliberately sought by evasion to delay the course of justice, had offered an inordinate, inexcusable and unexplained delay, and had not demonstrated a prima facie defence. Although the audi alteram partem rule required that a party not be condemned unheard, the court declined to exercise its discretion in the Applicants' favour. The application was dismissed with costs to the Respondents/Petitioners, clearing the way for judgment to be delivered as scheduled. The court also disregarded a further affidavit filed without leave as superfluous, invoking Article 159(2)(d).

Key legal issues

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01

Whether the Applicants were properly served with hearing and mention notices

Holding

The court record and affidavits of service established effective service on every occasion the court directed service

Reasoning

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.

p. 5
02

Whether the Applicants demonstrated grounds warranting exercise of the court's discretion to stay judgment

Holding

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

Reasoning

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.

p. 6
03

Whether the further affidavit filed without leave should invalidate the application

Holding

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)

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 13th June 2017 is dismissed with costs to the Respondents/Petitioners
  2. 2.Judgment in Nyahururu ELC Petition No. 9 of 2017 to proceed for delivery on 28th June 2017 (stay/arrest of judgment refused)

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesSection 15(2)
  • Civil Procedure RulesOrder 53 rule 4(2)

Cases cited (3)

  • Harun Rashid Khator suing as the representative of Rashid Khator (Deceased) v Sudi Hamisi & 11 others
    [2014] eKLR
  • Peterson Moturi Moranga vs. Kennedy Marube Nyabuto & another
    [2014] eKLR
  • Shah –vs- Mbogo and Another
    [1967] E.A 116
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over proceedings pending before it; application stated no statutory provision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.