M’Chabari Kinoro v Isaiah Nkoroi Muriungi & 5 Others [2018] KEELC 1936 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ex-parte judgment should be set aside under Order 12 Rule 7 of the Civil Procedure Rules
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.
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.
Whether the defendants were properly served before the ex-parte hearing
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.
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.
Whether the delay of six months between the hearing and the application was explained
No explanation was offered for the delay between learning of the judgment and filing the application, weighing against setting aside.
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.
Legal principles established
#- 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
#- 1.The defendants' application dated 31st May 2018 seeking to set aside the ex-parte judgment is dismissed.
- 2.Costs follow the event and are awarded to the plaintiff.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.