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ELCDismissedNot stated in the extract· [2019] KEELC 681 (KLR)

Jenipher Nyanchoka Kimonge v Nyamondo Onchwari & 3 others [2019] KEELC 681 (KLR)

Environment and Land Court
14 November 2019
JOJ. M. Onyango
1,361 words in judgment
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The bottom line

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The court refused to undo a land judgment against defendants who ignored hearing notices and had no strong defence, warning that neglecting your case has consequences.

What this practically means

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Executive summary

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This was a ruling on the defendants' Notice of Motion dated 21st May 2018 seeking leave for B.N Ogari & Company Advocates to come on record, a stay of execution of the decree, and the variation or setting aside of the judgment delivered on 26th October 2018 so that the defendants could be heard. The dispute concerned land parcels South Mugirango/Botabori/124 (plaintiff) and 126 and 127 (defendants), which share a common boundary; the plaintiff alleged the defendants had trespassed and created an illegal access road to the main road. The parties had agreed to refer the matter to the Land Registrar and District Surveyor, Kisii, whose report was filed on 1st July 2011, and judgment was entered against the defendants on 26th October 2018 after the court found their advocates had been duly served with a hearing notice. Justice J.M. Onyango framed two issues: whether the conditions for setting aside the judgment were met, and whether the draft defence raised triable issues. Applying the principles in Yamko Yadpaz Industries Ltd v Kalka Flowers and the Shah v Mbogo line of authority, the court held the defendants were not blameless, having failed to follow up their case, and rejected allegations that their former advocates might be masqueraders. The draft defence raised no triable issues because the survey report had established the road was illegal and long user could not legalise it. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Conditions for setting aside an ex-parte/default judgment

Holding

The conditions were not met: the defendants' advocates were duly served with a hearing notice and the defendants had a duty to follow up on their case.

Reasoning

The court adopted the settled principles in Yamko Yadpaz Industries Ltd v Kalka Flowers citing Shah v Mbogo, Mbogo v Shah and related authorities. The prior judgment record showed an affidavit of service with the hearing notice stamped by the defendants' advocates. Allegations that the advocates could be masqueraders were rejected as preposterous, and the applicants were held to be blameless litigants who neglected their case.

p. 2
02

Whether the draft defence raises triable issues

Holding

It does not; the Land Registrar and District Surveyor had established the road on the plaintiff's land was illegal.

Reasoning

The court considered the draft defence against the surveyor's report filed on 1st July 2011, which established that the road created on the plaintiff's parcel was illegal. The defendants' suggestion that the road should be legalized because of long use did not render it legal, so the draft defence disclosed no triable issue warranting setting aside the judgment.

p. 2

Legal principles established

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  • The discretion to set aside an ex-parte judgment is free but must be exercised justly to do justice between the parties
  • The discretion is meant to relieve against accident, inadvertence or excusable mistake, not deliberate obstruction of justice
  • A litigant has a duty to follow up on the progress of their case
  • Where a surveyor's report establishes that a road on another's land is illegal, prolonged use does not legalize it

Court orders

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  1. 1.The Defendant's Notice of Motion dated 21st May 2018 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Cases cited (6)

  • Yamko Yadpaz Industries Limited Vs Kalka Flowers
    2013 KLR
  • Shah V Mbogo
    1967 EA 116 at 123
  • Mbogo V Shah
    1967 EA 93
  • Kanji Naran V Velji Ramji
    1954 21 EACA 20
  • Smith V Middleton
    1972 SC 30
  • Maina Vs Mugiria
    null
Jurisdiction invoked
Inherent jurisdiction to set aside ex-parte judgment / discretion under civil procedure to vary or set aside judgment obtained after inter partes hearing (application under the Civil Procedure Rules, provisions not specified in the extract)

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, "Jenipher Nyanchoka Kimonge v Nyamondo Onchwari & 3 others [2019] KEELC 681 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/681/eng@2019-11-14

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