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ELCDismissedNot stated in judgment (Chuka ELC; application dated 31st May 2018)· [2018] KEELC 1936 (KLR)

M’Chabari Kinoro v Isaiah Nkoroi Muriungi & 5 Others [2018] KEELC 1936 (KLR)

Environment and Land Court
19 September 2018
5,888 words in judgment
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The bottom line

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The Environment and Land Court at Chuka refused to set aside an ex-parte judgment, ruling that transport problems and unexplained delay are not a sufficient excuse for missing a court hearing.

What this practically means

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Executive summary

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The 1st to 4th defendants moved the Environment and Land Court at Chuka by a notice of motion dated 31st May 2018, brought under Order 12 Rule 7 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution, seeking to set aside an ex-parte judgment delivered on 21st February 2018 and to have the underlying land suit heard de novo. The suit concerned land parcels Kamanyaki/Kamarandi 1280-1284, which the plaintiff alleged were illegally carved out of his parcels 894 and 899; the defendants claimed they were duly registered owners after land adjudication. The defendants deponed that they arrived at court at midday on the hearing date of 27th November 2017 to find the suit already heard, attributing their lateness to transport difficulties travelling from Kamarandi to Chuka. The plaintiff opposed, producing hearing notices and affidavits of service showing counsel had been served, and pointing to an unexplained delay of six months before the application was filed. The court noted that it had satisfied itself of proper service before proceeding ex-parte, rejected transport problems as sufficient cause, observed that the defendants did not explain their three-month delay after learning of the judgment date, and noted that their advocate had not explained his own absence from the hearing. The application was dismissed with costs to the plaintiff, the ex-parte judgment and orders for eviction and cancellation of titles remaining in force.

Key legal issues

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01

Whether the ex-parte judgment should be set aside under Order 12 Rule 7 of the Civil Procedure Rules

Holding

The application was dismissed because the defendants did not demonstrate sufficient cause for their non-attendance and failed to act diligently after learning of the judgment.

Reasoning

The court was satisfied that the defendants had been properly served with hearing notices before the ex-parte hearing proceeded. The only excuse offered - transport problems from Kamarandi - was rejected as a precedent-creating excuse for delay. The defendants admitted learning on 27th November 2017 that judgment had been set for 21st February 2018, yet waited until 31st May 2018 to file the application without explanation. Their counsel also did not explain his own absence from the hearing. Article 159(2)(b) requires that justice not be delayed.

p. 9
02

Whether the defendants were properly served before the ex-parte hearing

Holding

The court had satisfied itself that the hearing date was within the knowledge of all parties and that the defendants had been properly served before allowing the matter to proceed ex-parte.

Reasoning

The court reviewed the record and found that before hearing the suit ex-parte under Order 12 of the Civil Procedure Rules, it satisfied itself that the hearing date was within the knowledge of all parties and that service had been properly effected. The plaintiff annexed hearing notices dated 31st October 2017 and 3rd August 2017 with affidavits of service showing receipt by both the Attorney General's chambers and the defendants' advocates. Service was therefore not in issue.

p. 8
03

Whether the delay of six months between the hearing and the application was explained

Holding

No explanation was offered for the delay between learning of the judgment and filing the application, weighing against setting aside.

Reasoning

The defendants admitted becoming aware on 27th November 2017 that judgment would be delivered on 21st February 2018, yet the application was not filed until 31st May 2018. Neither the defendants nor their advocate explained this three-month gap between the judgment date and the filing date, or the advocate's own absence on the hearing date. Following the reasoning in Express (Kenya) Limited v Manju Patel, where the explanation for delay does not come from those responsible, the delay cannot be attributed to accident, inadvertence or mistake.

p. 9

Legal principles established

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  • An applicant seeking to set aside an ex-parte judgment must show either that it was not properly served or that it failed to attend due to sufficient cause; transport difficulties and unexplained delay do not constitute sufficient cause.

Court orders

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  1. 1.The defendants' application dated 31st May 2018 seeking to set aside the ex-parte judgment is dismissed.
  2. 2.Costs follow the event and are awarded to the plaintiff.

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A and 1B
  • Constitution of Kenya, 2010Article 159(2)(a), (b) and (d)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (13)

  • Esther Wamaitha Njihia & 2 others vs. Safaricom Limited
    [2014] eKLR
  • Patel vs E.A. Cargo Handling Services Ltd
  • Shah vs Mbogo
  • Sebei District Administration vs Gasyali
  • Ongom vs Owota
  • Parimal vs Veena @ Bharti
    Supreme Court of India Civil Appeal 1467 of 2011
  • Transafrica Assurance Co Ltd vs Lincoln Mujuni
    Uganda HC Misc. Application no. 79 of 2014
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Ali Bin Khamis v. Salim Bin Khamis Kirobe & Others
    [1956] 1 EA 195
  • Burhani Decorators & Contractors v Morning Foods Ltd & another
    [2014] eKLR
  • Express (Kenya) Limited vs Manju Patel
    [2001] eKLR
  • Egal Mohamed Osman v Inspector General of Police & 3 others
    [2015] eKLR
  • S v Zuma & Others
    (1995) 2 SA 642 (CC)
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, Sections 3 & 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya

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, "M’Chabari Kinoro v Isaiah Nkoroi Muriungi & 5 Others [2018] KEELC 1936 (KLR)", Case Analysis (2018). Not stated in judgment (Chuka ELC; application dated 31st May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1936/eng@2018-09-19

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