Beatrice Muthio Nzioka v Charles Akelo Ong’wen [2018] KEELC 296 (KLR)
The bottom line
#A Kenyan land owner lost his bid to overturn an ex parte judgment because his lawyer attended court and filed submissions — blame-the-advocate excuses failed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of Nyamweya J to hear and determine the land suit
Nyamweya J had jurisdiction; finding otherwise would be an absurdity and illogical result
The Defendant contended that the judge lacked jurisdiction, rendering the judgment a nullity, relying on Republic v Karisa Chengo. The court, citing CREAW v Mwau on the presumption against absurdity, took judicial notice that land and environment disputes were handled by High Court judges before ELC judges were appointed. Invalidating such judgments would render countless decisions a nullity, which could not have been the intention of the 2010 Constitution creating specialised courts under Article 162.
Whether the Defendant's evidence was overlooked and whether the ex parte proceedings should be set aside
The Defendant's case and counterclaim were considered by the trial court; no basis for setting aside the ex parte hearing
The record showed the Defendant was represented on 17/6/2013 and 11/1/2013, an adjournment was sought on his behalf, and his advocate filed submissions. Pages of Nyamweya J's judgment analysed the Defendant's case and counterclaim, and the court allowed the set-off against the purchase price. Distinguishing the authorities relied on, in each of them neither the client nor advocate attended, unlike here.
Discretion to set aside an ex parte judgment on grounds of mistake of the former advocate
The discretion was not available because the Defendant was not absent: his advocate attended and made submissions
The Defendant blamed his former advocate for failing to notify him of hearing dates. The court distinguished Joyce Kichoro Kurwa and Richard N. Leiyagu, where there was total non-attendance by applicant and advocate. Here the advocate attended the hearing and filed submissions which the court considered; the Plaintiff also averred the decree had partly been performed.
Legal principles established
#- High Court judges who heard and determined land and environment cases before the appointment of ELC judges cannot be held to have lacked jurisdiction, as that would produce an absurdity contrary to the presumption against absurdity in constitutional construction
- In setting aside ex parte judgments the discretion is exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but a party who was represented and whose case was considered cannot claim the discretion
Court orders
#- 1.The Defendant's application dated 16/3/2013 is dismissed
- 2.Costs of the application to the Plaintiff
- Jurisdiction invoked
- Original suit before the court; the matter was previously heard and determined by Nyamweya J in a land dispute, now seised of the Defendant's post-judgment application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Beatrice Muthio Nzioka v Charles Akelo Ong’wen [2018] KEELC 296 (KLR)", Case Analysis (2018). not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/296/eng@2018-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.