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ELCDismissedKisumu ELCA No. 7 of 2018· [2018] KEELC 897 (KLR)

Zacharia Karanja Kinyanjui & another v George Ngala Awino & another [2018] KEELC 897 (KLR)

Environment and Land Court
14 November 2018
1,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a land buyer's appeal because he missed court dates and paid court-ordered costs late with a postdated cheque.

What this practically means

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Executive summary

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This was a first appeal in the Environment and Land Court, Kisumu, by Zacharia Karanja Kinyanjui against the ruling of Hon. P. L. Shinyada, Senior Resident Magistrate, of 8th July 2016 in Kisumu CMCC No. 606 of 2014, in which the trial court dismissed his notice of motion seeking to set aside ex parte proceedings. The underlying suit was brought by the Respondents, who claimed a refund of a Kshs. 380,000 deposit paid under a sale agreement over Kisumu Municipality/Block 10/686, alleging the Appellant failed to disclose underlying water and sewerage pipes rendering the plot unsuitable. After judgment was entered ex parte in December 2015, the trial court on 24th March 2016 allowed the Defendant's application to set aside the proceedings on condition he pay throw-away costs of Kshs. 10,000 within 15 days, failing which the orders would lapse and the judgment remain in force. The Defendant tendered a cheque postdated to 11th April 2016, outside the 15-day period. The appeal, initially filed in the High Court and transferred to the ELC on jurisdictional grounds, raised five grounds condensed into three issues, including fair hearing and access to justice. Justice S. M. Kibunja re-evaluated the evidence, held the Appellant had not been denied a hearing but had repeatedly absented himself, found no basis to interfere with the trial magistrate's finding on non-compliance with the conditional order, and dismissed the appeal with costs.

Key legal issues

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01

Whether the Appellant was denied an opportunity to be heard / fair hearing

Holding

The Appellant was not denied an opportunity to be heard; he was the author of his own misfortune, having repeatedly failed to attend court on fixed hearing dates.

Reasoning

The record showed the judgment of 26th June 2015 had been set aside by consent and the defence case reopened; the defence hearing was adjourned by consent, yet the Defendant and his counsel again failed to attend on 2nd December 2015. Article 159(2)(b) and Sections 1A and 1B of the Civil Procedure Act require expeditious disposal, and parties must assist the court and comply with its orders. His conduct suggested delay rather than keenness to be heard.

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02

Whether the trial magistrate erred in finding the conditional order of 24th March 2016 had lapsed

Holding

No error; the throw-away costs of Kshs. 10,000 were not paid within 15 days, so the reinstated judgment of 18th December 2015 remained in force.

Reasoning

The trial court had allowed the Defendant's application to set aside the ex parte proceedings on condition that he pay throw-away costs within 15 days, failing which the orders would lapse and the judgment remain in force. A cheque postdated to 11th April 2016 fell outside the 15-day window, so payment could not be processed in time. The appellate court found no basis to interfere with that finding.

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First appeal - duty to re-evaluate evidence

Holding

As a first appeal on a ruling prosecuted through affidavit evidence and submissions, the court re-evaluated the evidence and pleadings to determine whether it would reach a different conclusion.

Reasoning

The court stated the standard applicable to a first appeal: re-evaluation of the evidence and pleadings to see whether it would arrive at a different conclusion. It condensed the five grounds of appeal into three issues and, on analysis, found no merit in any of them, affirming the impugned ruling dismissing the Defendant's notice of motion of 15th April 2016.

p. 1

Legal principles established

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  • A party who is afforded an opportunity to be heard but repeatedly absents himself cannot fault the court for determining the matter on the evidence before it.
  • Non-compliance with a conditional order setting aside an ex parte judgment, within the time given, causes the judgment to automatically lapse/reinstate; a postdated cheque presented outside the period does not constitute compliance.

Court orders

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  1. 1.The appeal against the lower Court's ruling of 8th July 2016 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(b)
  • Civil Procedure Act Chapter 21 Laws of KenyaSection 1A
  • Civil Procedure Act Chapter 21 Laws of KenyaSection 1B(1)(d)
On appeal from
Chief Magistrate's Court, Kisumu
Kisumu C.M.C.C. No. 606 of 2014
Jurisdiction invoked
First appeal transferred to the Environment and Land Court on ground of jurisdiction (from Kisumu High Court Civil Appeal No. 48 of 2016)

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, "Zacharia Karanja Kinyanjui & another v George Ngala Awino & another [2018] KEELC 897 (KLR)", Case Analysis (2018). Kisumu ELCA No. 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/897/eng@2018-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.