Lawrence Muiruri Njuguna v Charles Mwenga Mulwa [2018] KEELC 311 (KLR)
The bottom line
#The Environment and Land Court dismissed a bid to set aside a land judgment because the defendant had fully participated in the hearing, so no exparte judgment existed to overturn.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 12/7/17 (delivered 7/12/17) was exparte
It was not. The Defendant's advocates were duly served, held brief on 30/5/17, and on 12/7/17 the Defendant and his counsel were present, cross-examined the Plaintiff and testified with a witness
The court reviewed the record: the hearing on 30/5/17 proceeded without the Defendant's counsel after service was confirmed, and on 12/7/17 Mr Nzavi and the Defendant appeared, sought and obtained leave to recall the Plaintiff for cross-examination, then the Defendant testified with one witness and filed submissions. The claim that the case was heard in the Defendant's absence was contradicted by the court record, and the Defendant's new advocate was found to be misleading the Court.
Whether the court should exercise its discretion under Order 12 rule 7 to set aside the judgment
The discretion was declined; there was no irregularity and no merit in the defence-based grounds
The court adopted the principles in Pithon Waweru Maina v Thuka Mugiria that the power to set aside is discretionary and must be exercised on evidence and sound legal principles, and that a reasonable defence with merit inclines the court towards setting aside. Since the judgment was regular and not exparte, no cause was established; the Defendant's grievance lay against his former advocates or on appeal.
Whether stay of execution should be granted
The temporary stay previously granted had lapsed as it was pegged to the hearing of the application; the issue was not addressed in submissions and the court did not deal with it
Neither party addressed the court on stay of execution in their written submissions despite it being prayer 3 of the motion. The court construed the earlier interim stay as operating only until determination of the application, which had now occurred, rendering the stay spent. It therefore declined to delve into the issue.
Legal principles established
#- An exparte proceeding is one conducted at the instance and benefit of one party only, without notice to or participation of the adversely interested party; where the Defendant and his counsel attended and participated, the judgment is not exparte and cannot be set aside as such
- Where a party's advocate is duly served with a hearing notice but does not attend, the court may properly proceed exparte under Order 12 rule 2(a); a defendant aggrieved by his advocate's conduct must seek remedy elsewhere, not setting aside of the judgment
Court orders
#- 1.Prayer (b) of the application allowed by consent on 20/9/18 - S Ogeto Ongori & Co. Advocates came on record for the Defendant
- 2.Temporary stay of execution granted on 20/9/18 pending hearing and determination of the application
- 3.The Notice of Motion dated 17/8/18 dismissed with costs to the Plaintiff
- Jurisdiction invoked
- Inherent jurisdiction under Section 1, 1A, 1B, 3, 3A and Section 63 of the Civil Procedure Act, Order 51 Rule 1, Order 22 Rule 22, Order 9 Rule 9 and Order 12 of the Civil Procedure Rules 2010 and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawrence Muiruri Njuguna v Charles Mwenga Mulwa [2018] KEELC 311 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/311/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.