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ELCAllowedNot stated in judgment· [2019] KEELC 612 (KLR)

Annah Muthoni Ireri v William Njeru Mbogo [2019] KEELC 612 (KLR)

Environment and Land Court
24 October 2019
YAY.M. Angima
744 words in judgment
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The bottom line

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A Kenyan court set aside a default land judgment because the defendant missed the hearing due to his lawyer's clerk forgetting to diarise the date.

What this practically means

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Executive summary

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The Defendant filed a notice of motion dated 4th April 2019 under Order 9, Order 12 Rule 7 and Order 22 Rule 25 of the Civil Procedure Rules 2010 seeking to set aside an ex parte judgment delivered on 19th October 2017 and all consequential orders. He contended that he was never notified of the hearing date by his advocate, that he was condemned unheard, and that he had extensively developed the suit property; the non-attendance was attributed to a clerk in the firm of his previous advocates, Eddie Njiru & Co. Advocates, failing to diarise the hearing date. The parties agreed to canvass the application by written submissions, but by the date of the ruling neither party had filed submissions, and the Plaintiff filed no response. The court, presided over by Y.M. Angima J, considered the principles in Girado v Alam & Sons, Patel v E.A. Cargo Handling Services Ltd and Mbogo & Another v Shah, which establish a wide and unfettered discretion to set aside default judgments on such terms as may be just. The court found the Defendant's explanation reasonable and unchallenged, and no material suggesting deliberate obstruction of justice. The court allowed the application, set aside the ex parte judgment of 19th October 2017, directed the parties to file and exchange trial bundles within 21 days and take a hearing date within 30 days, and ordered the Defendant to pay the Plaintiff costs of Kshs. 20,000/- within 30 days.

Key legal issues

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01

Whether the default judgment should be set aside

Holding

The court allowed the application and set aside the ex parte judgment, being satisfied the Defendant deserved an opportunity to be heard.

Reasoning

Applying the established principles in Girado, Patel and Mbogo, the court found the Defendant's explanation (a clerk's failure to diarise the hearing date) reasonable and unchallenged by the Plaintiff. No material suggested deliberate delay or obstruction. The court's discretion under Order 12 Rule 7 was accordingly exercised in favour of setting aside the judgment on terms, including payment of Kshs. 20,000/- costs.

p. 2

Legal principles established

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  • The court has a wide and unfettered discretion to set aside a default judgment even where it was regularly obtained, to be exercised on such terms as may be just.
  • The discretion to set aside a default judgment exists to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction.

Court orders

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  1. 1.The ex parte judgement dated 19th October 2017 is hereby set aside
  2. 2.The parties shall file and exchange their respective trial bundles duly bound and paginated within 21 days from the date hereof
  3. 3.The parties shall take a hearing date for hearing of the suit within 30 days
  4. 4.The Defendant shall pay the Plaintiff costs in the sum of Kshs. 20,000/- within 30 days from the date hereof

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 9
  • Civil Procedure Rules 2010Order 12 Rule 7
  • Civil Procedure Rules 2010Order 22 Rule 25

Cases cited (3)

  • Girado V Alam & Sons (U) Ltd
    [1971] EA 4480
  • Patel V E.A. Cargo Handling Services Ltd
    [1974] EA 75
  • Mbogo & Another V Shah
    [1968] E.A. 93 / [1967] EA 116
Jurisdiction invoked
Order 12 Rule 7, Order 9 and Order 22 Rule 25 of the Civil Procedure Rules 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, "Annah Muthoni Ireri v William Njeru Mbogo [2019] KEELC 612 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/612/eng@2019-10-24

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