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ELCAllowedNot stated in the judgment (plaint dated 3rd October 2017)· [2018] KEELC 2020 (KLR)

Kephas Ochieng Mwita v Migori County Land Management Board & 2 others [2018] KEELC 2020 (KLR)

Environment and Land Court
19 July 2018
GOG.M.A. Ongondo
1,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court at Migori set aside a default judgment, ruling a county government deserved a fair chance to defend its land claim on merit.

What this practically means

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Executive summary

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The 2nd defendant, a County Government, moved the Environment and Land Court at Migori by notice of motion dated 1st February 2018 seeking to vary or set aside a judgment in default entered against the defendants on 29th January 2018, and leave for the 1st, 2nd and 3rd defendants to enter appearance and file defences out of time. The suit, filed by plaint dated 3rd October 2017, sought among other reliefs an order directing the 3rd defendant to remove a caution registered over LR No. Suna East/Wasweta 1/517. After ex parte hearing following service, judgment was entered in default of defence. The 2nd defendant explained that it had instructed Odhiambo Oronga & Co. Advocates, who failed to act, and that its draft defence raised triable issues, notably that the suit property is public land hosting public utilities including KEFRI, a showground, airstrip, prisons and a cemetery. The plaintiff opposed, contending the application was defectively drawn and the supporting affidavit improperly sworn by the instructing advocate. Justice Ongondo held the proceedings and judgment were technical, occasioned by counsel's mistake, which cannot be visited on a client. Relying on Article 159(2)(d) on technicalities, Article 50(1) on fair hearing, and authority that triable issues rather than likelihood of success are paramount, the court found the application merited. The application was allowed in terms of prayers 3, 4, 5 and 6: the default judgment was set aside, leave to defend granted, appearance and defence deemed filed, with Order 11 compliance within 90 days and mention on 31/10/2018. Costs were to be in the cause.

Key legal issues

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01

Whether the default judgment of 29th January 2018 should be set aside and the defendants granted leave to defend

Holding

Yes. The proceedings and judgment were technical, occasioned by counsel's failure to act, and the draft defence raises bona fide triable issues; the defendants have a constitutional right to a fair hearing.

Reasoning

The court found the defendants were duly served and the suit heard ex parte, but the resulting judgment was technical in nature, arising from the inaction of the 2nd defendant's instructed advocates. The draft statement of defence raised triable issues over the suit property alleged to be public land. Article 159(2)(d) requires justice without undue regard to technicalities, and Article 50(1) guarantees a fair hearing, favouring determination on the merits.

p. 3

Legal principles established

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  • Mistakes of counsel cannot be visited on a client
  • Technical judgments are not the best judgments; justice must be administered without undue regard to procedural technicalities

Court orders

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  1. 1.The application is allowed in terms of orders 3, 4, 5 and 6 sought therein
  2. 2.The judgment in default entered against the defendants on 29th January 2018 is varied and/or set aside and the suit to proceed to hearing and be determined on merit
  3. 3.Leave granted to the 1st, 2nd and 3rd defendants to enter appearance and file their respective statements of defence out of time
  4. 4.The 2nd defendant's draft memorandum of appearance and defence deemed properly filed
  5. 5.The parties to ensure full compliance with Order 11 Civil Procedure Rules, 2010 within the next 90 days from the date hereof to facilitate the hearing and determination of the suit
  6. 6.Mention for pre-trial directions on 31/10/2018

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3A
  • Civil Procedure Rules, 2010Order 51(1), 10(8), 11; Order 51 Rule 16
  • Constitution of Kenya, 2010Articles 1(1), 4, 50(1), 159(2)(d)
  • Government Proceedings ActSection 30(2)
  • Environment and Land Court Practice Directions, 2014Practice Direction No. 33(a)

Cases cited (11)

  • Giella –v- Cassman Brown & Co. Ltd
    (1973) EA 358
  • Prime Bank Ltd –v- Paul Otieno Nyamodi
    (2014) eKLR
  • Patel –v- Cargo Handling Services Ltd
    (1974) EA 75
  • Richard Ncharpi Leiyagu –v- IEBC & 2 others
    (2013) eKLR
  • Thayu Kamau Mukigi –v- Francis Kibaru Karanja
    (2013) eKLR
  • Serah Auma Juma –v- BAT (K) Ltd & Another
    (1976-80) 1 KLR 751
  • Scholastic Mashega – v- Kenya Power and Lighting Co. Ltd
    Kisumu HCCC No. 215 of 1992
  • Mwangi & Another –v- Mwangi
    (1986) KLR 328
  • Kanwal Sarji Singh Dhiman –v- Kashavji Shah
    (2015) eKLR
  • Day –v- Ray Motoring Services Ltd
    (1990) ALL ER 1007
  • Attorney General –v- Equip Agencies
    (2006) 1 KLR 10
Jurisdiction invoked
Sections 1, 1A, 3A of the Civil Procedure Act and Order 51(1), 10(8) and 11 of the Civil Procedure Rules; Articles 1(1), 4, 50 and 159(2)(d) of the Constitution of Kenya, 2010

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, "Kephas Ochieng Mwita v Migori County Land Management Board & 2 others [2018] KEELC 2020 (KLR)", Case Analysis (2018). Not stated in the judgment (plaint dated 3rd October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2020/eng@2018-07-19

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