M’arichia Mwithiga Kirigia v Romano Muthengi Nduyo & 3 others [2018] KEELC 117 (KLR)
The bottom line
#A Kenyan court refused to reopen a default judgment because the defendant waited ten months without explaining the delay, proving blame-your-lawyer excuses fail.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte judgment should be set aside despite the applicant's unexplained delay
The application lacked merit and was dismissed; the delay was unexplained and the applicant acted only upon execution
The judgment was delivered on 19th December, 2017 and the application filed on 30th October, 2018, over ten months later. The claim that the applicant's former advocate failed to communicate the hearing date did not explain the filing delay. The Deputy Registrar's ruling on costs was delivered on 10th May, 2018, yet the applicant moved only five and a half months later, suggesting he was awakened by execution proceedings. A litigant must diligently follow up his suit.
The overriding objective and expeditious disposal of civil disputes
Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) require expeditious delivery of justice; the suit had been pending for nearly ten years
The court agreed with the respondent's submission that parties and their advocates must assist the court in facilitating the just, expeditious, proportionate and affordable resolution of disputes, and that justice delayed is inconsistent with Article 159(2)(b). Reopening a suit filed in 2008 and pending for close to ten years would run contrary to these principles.
Legal principles established
#- A litigant must diligently follow up all processes and developments relating to his suit; blame of an advocate alone does not explain delay
- Justice shall not be delayed under Article 159(2)(b) of the Constitution
Court orders
#- 1.The application dated 11th October, 2018 is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, Sections 3 & 3A of the Civil Procedure Act, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’arichia Mwithiga Kirigia v Romano Muthengi Nduyo & 3 others [2018] KEELC 117 (KLR)", Case Analysis (2018). HCCC No. 65 of 2008 (application dated 11th October, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/117/eng@2018-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.