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ELCDismissedNotice of Motion dated 4/8/2017 in ELC Suit (Land Reference Number 209/12320)· [2018] KEELC 2336 (KLR)

Annunciata Mwongela & 2 others v William Abuka & 2 others [2018] KEELC 2336 (KLR)

Environment and Land Court
25 July 2018
BEB M Eboso
906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a default land judgment because the defendants repeatedly skipped hearings and never properly explained their lawyer's missed court date.

What this practically means

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Executive summary

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The plaintiffs, administrators and beneficiaries of the estate of the late Henry Mutie Mwongela, registered proprietor of Land Reference Number 209/12320, obtained judgment on 12/6/2017 in a suit claiming that the defendants were trespassers and seeking an order that they vacate. The defendants filed a Notice of Motion dated 4/8/2017 seeking to set aside the judgment and to stay execution, contending that their advocate failed to diarize the hearing due to an 'administrative mix-up'. The plaintiffs opposed, arguing that the mix-up was unexplained and that the defendants had repeatedly failed to attend court on prior dates despite service. Justice B M Eboso framed a single issue: whether the applicants had satisfied the criteria for setting aside a valid ex-parte judgment. Applying the principles in Maina v Mugiria (1983) KLR 78, the court noted that the nature of the mix-up was never disclosed and the advocate did not swear an affidavit explaining it. The record showed the defendants had been served but elected not to attend two previous hearings, skipped pre-trial sessions, filed no witness statements or bundle of documents, and the 2nd defendant filed no defence at all. The 1st and 3rd defendants, in their joint defence, denied occupying the property and laid no claim of title, alluding only to undisclosed third parties possibly claiming adverse possession. The deceased's title was unchallenged. The court declined to exercise its discretion in the applicants' favour and dismissed the Notice of Motion dated 4/8/2017 for lack of merit, with the consequence that the judgment of 12/6/2017 stands and the stay sought was refused.

Key legal issues

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01

Whether the criteria for setting aside an ex-parte judgment were satisfied

Holding

The application fails because the alleged administrative mix-up was not explained on affidavit and the defendants had previously been served but elected not to attend

Reasoning

The court applied the Court of Appeal's principles in Maina v Mugiria: the discretion is free but must be exercised justly, to remedy inadvertence or excusable mistake, not to reward deliberate non-attendance. The nature of the 'administrative mix-up' was undisclosed and the advocate did not swear an affidavit. The defendants had been served but skipped prior hearings and pre-trial sessions, filed no witness statements, and the 2nd defendant filed no defence. The defendants denied occupying the suit property and claimed no title, and the deceased's title was unchallenged.

p. 2

Legal principles established

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  • The discretion to set aside an ex-parte judgment has no limits except that it be exercised on such terms as are just, to avoid injustice from accident, inadvertence or excusable mistake, and not to assist a party who has deliberately obstructed or delayed the course of justice

Court orders

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  1. 1.The Notice of Motion dated 4/8/2017 seeking the setting aside of the judgment entered herein is dismissed for lack of merit

Authorities

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Cases cited (1)

  • Maina v Mugiria
    (1983) KLR 78
Jurisdiction invoked
Inherent discretion to set aside ex-parte judgment under civil procedure law

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, "Annunciata Mwongela & 2 others v William Abuka & 2 others [2018] KEELC 2336 (KLR)", Case Analysis (2018). Notice of Motion dated 4/8/2017 in ELC Suit (Land Reference Number 209/12320). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2336/eng@2018-07-25

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