Patrick Muchiri v Agnes Mumbi Ng’ang’a [2018] KEELC 2196 (KLR)
The bottom line
#A Kenyan land court let a defendant who missed her hearing back into the case, but only after paying the other side Kshs. 20,000 within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment of 19th December 2017 should be set aside
Yes - the court, though disinclined on the merits, exercised its discretion in the interest of justice to allow the defendant to be heard
The court noted the hearing date was taken by consent and the defendant was represented throughout, with no affidavit from the former advocates explaining the non-attendance. It cautioned against laxity by Counsel who abandon clients, and stressed Article 159 benefits both parties. Nonetheless, in the interest of justice it allowed the defendant to cross-examine the plaintiff and give her evidence, on terms of thrown away costs.
Whether grounds for review existed
No new evidence or error on the face of the record was established; the application was framed instead as one invoking the court's discretion and Article 159
The plaintiff's Counsel opposed review on the basis that no new evidence or error on the face of the record existed. The defendant's Counsel conceded the application was not based on discovery of new evidence but on the exercise of discretion and Article 159. The court therefore treated the matter as one of discretionary setting aside rather than review.
Whether the upheavals in the defendant's former law firm excused non-attendance
No - representation issues had been resolved before the hearing, Adalo Bitok & Co. Advocates were on record, and no affidavit explained the non-attendance
The court traced the adjournments, noting the plaintiff's Counsel twice obtained adjournments while the defendant's Counsel was ready, and the hearing date was taken by consent. Adalo Bitok Advocates were on record by the hearing, and at mention the defendant's Counsel sought 7 days to file submissions which were never filed. The court found the upheaval argument did not arise and the former advocates should have sworn an affidavit explaining non-attendance.
Legal principles established
#- The discretion to set aside an ex parte judgment is free but must be exercised to do justice and not to assist a party who deliberately obstructs or delays the course of justice
- Substantive justice under Article 159 applies to both parties, not only the applicant
- Parties must follow up their cases and cannot simply rely on the maxim that mistake of Counsel should not be visited upon innocent parties
Court orders
#- 1.The defendant was allowed to cross-examine the plaintiff on the evidence on record and tender her evidence during the hearing
- 2.The defendant to pay the plaintiff thrown away costs of Kenya Shillings twenty thousand (Kshs. 20,000/-) within 21 days, failure of which the order lapses
- 3.The application is allowed
- Jurisdiction invoked
- Inherent discretion to set aside ex parte judgment under the Civil Procedure Act/Rules (Order 12) read with Article 159 of the Constitution on substantive justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Muchiri v Agnes Mumbi Ng’ang’a [2018] KEELC 2196 (KLR)", Case Analysis (2018). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2196/eng@2018-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.