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ELCPartially AllowedMurang'a ELC (ex Nyeri CMCC No. 88 of 2016)· [2019] KEELC 374 (KLR)

Joseph Muiruri Njiraini v Joyce Wanjiku Ngugi & 2 others [2019] KEELC 374 (KLR)

Environment and Land Court
11 December 2019
JKJ G Kemei
1,950 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who missed a hearing won another chance at trial, but had to pay costs because 'review' was the wrong legal route.

What this practically means

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Executive summary

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The Applicant, the 1st Defendant, moved the Court by Notice of Motion dated 26/4/2019 seeking review and setting aside of orders vesting L.R. MAKUYU/MAKUYU/BLOCK1/9081 in the Plaintiff, alleging she was never served with hearing notices and that her advocate's non-attendance was inadvertent. The 1st Respondent opposed, contending service was effected, that the Applicant had been indolent (her defence and counterclaim were previously struck out for non-service), and that the decree had already been executed. The Court framed three issues: entitlement to review, whether the judgment should be set aside, and costs. On review, the Court applied Order 45 and held the prayer untenable because no new and important matter, error apparent on the face of the record, or other sufficient reason was demonstrated, emphasizing that an error apparent must be obvious and self-evident. On setting aside, the Court applied the Shah v Mbogo discretion and the three-part test in Mohammed v Shoka: triable defence, prejudice, and explanation for delay. It found a draft defence and counterclaim raising triable issues, an excusable explanation for non-attendance connected to the case's transfer from Nyeri to Murang'a, and no prejudice since execution was only removal of caution. The Court dismissed the review but set aside the judgment of 17/12/17 in its entirety, vacated the orders of 17/7/17, directed refilement and service of the defence within 14 days, ordered a restriction on the suit land, and awarded throw away costs of Kshs 10,000/-, with application costs in the cause.

Key legal issues

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01

Whether review of judgment was available

Holding

Review was untenable; no ground under Order 45 established

Reasoning

Order 45 confines review to discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. An error apparent must be obvious and self-evident, not one fished out by reasoning. The Applicant demonstrated none of these grounds, so the review limb failed.

p. 2
02

Whether the ex parte judgment should be set aside

Holding

Yes, in exercise of discretion, subject to terms

Reasoning

Applying Shah v Mbogo and Mohammed v Shoka, the court found the Applicant's non-attendance excusable (notices went to previous advocates who did not connect the transferred case number), a defence with triable issues existed, and no prejudice would arise since execution was only removal of caution. The discretion favours hearing a suit on merits.

p. 3

Legal principles established

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  • An error apparent on the face of the record must be obvious and self-evident, not one requiring elaborate argument or detection by reasoning
  • The test for setting aside default judgment considers defence on merit, prejudice, and explanation for delay
  • A defence on merit need not be one that must succeed; a triable issue suffices

Court orders

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  1. 1.Prayer for review dismissed as untenable
  2. 2.The judgment of the Court delivered on 17/12/17 set aside in its entirety
  3. 3.The orders of the Court issued on 17/7/17 vacated
  4. 4.Defendants to refile and serve the defence and counterclaim upon the Plaintiff within 14 days and thereafter fix the matter for hearing
  5. 5.A restriction to be registered on the suit land prohibiting any dealings pending hearing and disposal of the suit
  6. 6.Applicant to pay throw away costs of Kshs 10,000/- to the Respondent/Plaintiff within 45 days
  7. 7.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (5)

  • Shah Vs Mbogo
    (1979) EA 116
  • Mohammed & Another Vs Shoka
    (1990) KLR 463
  • CMC Holdings Limited Vs James Mumo Nzioki
    CA No. 329 of 2004 1 KLR 173
  • Tree Shade Motors Limited Vs D.T Dobie & Company (K) Limited and Joseph Rading Wasambo
    CA 38 of 1998
  • Patel – Vs – Cargo Handling Services Ltd
    [1974] E.A. 75
Jurisdiction invoked
Order 45 and Order 12 Rule 7 of the Civil Procedure Rules

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, "Joseph Muiruri Njiraini v Joyce Wanjiku Ngugi & 2 others [2019] KEELC 374 (KLR)", Case Analysis (2019). Murang'a ELC (ex Nyeri CMCC No. 88 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/374/eng@2019-12-11

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