Moses Munywoki Mwendwa & another v John Mutua Muasya & another [2019] KEELC 2272 (KLR)
The bottom line
#A Kenyan land owner lost his bid to overturn a 2017 judgment after the court found his own cross-examination on record proved he had been heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 3rd March, 2017 should be set aside for want of service and hearing
The application fails because the 2nd Defendant was present, cross-examined the 1st Plaintiff, testified and was cross-examined; the court heard both sides before delivering judgment.
The record showed the file was reconstructed on 25th March, 2015 following its loss, directions were issued on 30th August, 2016, and the matter was fixed for hearing on 7th December, 2016. On that date the 2nd Defendant attended, cross-examined the 1st Plaintiff, testified and was cross-examined by the Plaintiffs' advocate. Judgment was reserved and delivered on 3rd March, 2017, allowing the Plaintiffs' claim and dismissing the counter-claim. His claim of non-service was therefore untrue.
Whether the reconstructed file and dual case numbers (ELC No. 327 of 2015 and 111 of 2006) excused the 2nd Defendant
This explanation was rejected; the 2nd Defendant actually attended and participated in the hearing despite the two case numbers.
The 2nd Defendant argued that the existence of two case numbers following reconstruction confused him about the hearing date. However, the court's own record demonstrated that he was in court on the hearing date, actively cross-examined the 1st Plaintiff, and gave evidence himself. Participation in the proceedings defeated any claim of confusion or lack of notice.
Legal principles established
#- A party who was present and participated in a hearing, including cross-examination and giving evidence, cannot later claim he was never heard so as to warrant setting aside the judgment.
Court orders
#- 1.The Application by the 2nd Defendant dated 18th October, 2018 is dismissed
- 2.Costs of the application to the Plaintiffs
- Jurisdiction invoked
- Inherent jurisdiction of the court to set aside its judgment (Application dated 18th October, 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Munywoki Mwendwa & another v John Mutua Muasya & another [2019] KEELC 2272 (KLR)", Case Analysis (2019). ELC Case No. 111 of 2006 (formerly reconstructed as ELC Case No. 327 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2272/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.