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ELCDismissedNotice of Motion dated 1st February 2018 in ELC Suit (Thika Municipality Block 2/1030 and 1031)· [2018] KEELC 1039 (KLR)

Veronica Wangari Kabogo v Julius Githome & 3 others [2018] KEELC 1039 (KLR)

Environment and Land Court
2 November 2018
2,301 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff sued for eviction and a permanent injunction over land parcels Thika Municipality Block 2/1030 and 1031, claiming to be their registered owner under Certificates of Lease issued on 5th July 2012. The Defendants entered appearance, participated in the Plaintiff's interlocutory injunction application (on which a status quo order was issued on 23rd May 2014), but never filed a Defence. The suit proceeded to formal proof, was heard exparte on 23rd June 2017, and Judgment was delivered on 13th October 2017. When the Plaintiff sought to enforce the Decree, the Defendants filed a Notice of Motion dated 1st February 2018 seeking leave for new advocates, stay of execution, setting aside of the exparte proceedings and Judgment, and unconditional leave to file a Defence. They argued that the Hearing Notice had been served on the wrong firm and under protest, and that they had a meritorious Defence. The Plaintiff opposed, maintaining the Judgment was regularly obtained. The court applied Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Article 159(2)(d) of the Constitution. It held that Norman Otieno Advocate's affidavit admitted he was handling the matter, so service was effective; that no draft Defence was annexed, so following Gateway Insurance Co. Ltd v Mohammed Athman Mjahid the court need only ask whether the Judgment was regularly entered, which it was; and that the Defendants, having breached the status quo order and failed to participate for over five years, came to court with unclean hands. The application was dismissed entirely with costs to the Plaintiff.

Key legal issues

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01

Service of Hearing Notice

Holding

Service on Norman Otieno Advocate was effective; his protest was contradicted by his own affidavit admitting he was handling the matter

Reasoning

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.

p. 3
02

Existence of triable issues / draft Defence

Holding

No plausible Defence with triable issues was established since no draft Defence was annexed

Reasoning

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.

p. 3
03

Discretion of the court and clean hands

Holding

The Defendants, being in contempt of the Status Quo Order and guilty of inordinate inaction, did not merit discretionary relief

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the Defendants/Applicants' Notice of Motion dated 1st February 2018 entirely
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 10 Rule 9
  • Civil Procedure RulesOrder IXA Rule 10

Cases cited (1)

  • Gateway Insurance Co. Ltd v Mohammed Athman Mjahid
    Civil Appeal No.180 of 2001
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Article 159(2)(d) of the Constitution

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, "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.