Veronica Wangari Kabogo v Julius Githome & 3 others [2018] KEELC 1039 (KLR)
The bottom line
#A Thika court refused to overturn a land judgment against owners who never filed a Defence or obeyed court orders, awarding costs to the plaintiff.
What this practically means
#Executive summary
#Key legal issues
#Service of Hearing Notice
Service on Norman Otieno Advocate was effective; his protest was contradicted by his own affidavit admitting he was handling the matter
Norman Otieno received the Hearing Notice on 12th May 2017 and alleged it was served on his firm instead of Mutuli & Associates. However, his own affidavit stated the counsel handling the matter would be away in Gatundu Law Courts, an admission that he was handling the matter. Even if received under protest, he neither attended nor sent anyone to hold his brief, and the Defendants also failed to attend.
Existence of triable issues / draft Defence
No plausible Defence with triable issues was established since no draft Defence was annexed
The Defendants sought setting aside and leave to file a Defence but did not attach a draft Defence. Following Gateway Insurance Co. Ltd v Mohammed Athman Mjahid, where no draft Defence is annexed, the court need only consider whether the Judgment was regularly entered. The Judgment here was regular, the Plaintiff having set the suit down for hearing after the Defendants failed to file a Defence or comply with Order 11.
Discretion of the court and clean hands
The Defendants, being in contempt of the Status Quo Order and guilty of inordinate inaction, did not merit discretionary relief
The Defendants failed to file a Defence from 2013, failed to attend court, failed to comply with Order 11, and breached the Status Quo Order of 23rd May 2014 by developing the suit properties, placing them in contempt. Coming to court with unclean hands, they could not benefit from the court's discretion. Setting aside the regular Judgment would prejudice the Plaintiff and defeat the overriding objective of just and expeditious disposal.
Legal principles established
#- Where there is no draft Defence annexed to an application for setting aside an exparte Judgment, the court need only decide whether the Judgment was regularly entered
- A party who has not come to court with clean hands cannot benefit from discretionary orders of the court
Court orders
#- 1.Dismissal of the Defendants/Applicants' Notice of Motion dated 1st February 2018 entirely
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Veronica Wangari Kabogo v Julius Githome & 3 others [2018] KEELC 1039 (KLR)", Case Analysis (2018). Notice of Motion dated 1st February 2018 in ELC Suit (Thika Municipality Block 2/1030 and 1031). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1039/eng@2018-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.