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ELCDismissedCase No 44 of 2014· [2019] KEELC 2425 (KLR)

Titus Ng’ang’a Kamuyu v Joseph Gitagia Mutheki & another [2019] KEELC 2425 (KLR)

Environment and Land Court (per coram listing 'JUDGE' at Nakuru; court not expressly named in the extract)
15 July 2019
DOD. O. Ohungo
1,015 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru land court refused to undo a default judgment because the defendant lied about his advocate and delayed for months without explanation.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 7th September 2018 by the 1st defendant at Nakuru, seeking leave for Githui & Co. Advocates to come on record after judgment, setting aside of the decree issued on 8th June 2018 (judgment having been delivered on 3rd May 2018), and leave to file his defence. The application was supported by the 1st defendant's affidavit and opposed by the plaintiff, with written submissions filed by both sides. The applicant claimed he never instructed the advocate who filed appearance and that he could not trace counsel before judgment. The plaintiff countered that the applicant had advocates on record throughout, had sworn a replying affidavit in the 1990s, had ample opportunity to act after attending court on 10th November 2017, and that any defence was already determined in Nakuru HCCC No. 265 of 1989. Justice D. O. Ohungo applied the principles in Mbogoh & Another v. Shah as restated in James Kanyiita Nderitu, distinguishing regular from irregular default judgments. The court found service was not denied, appearance had been filed by Ochieng-Odhiambo & Co. Advocates on 18th February 1992, and a replying affidavit had been filed on the applicant's behalf in March 1992, rendering his claim disingenuous and amounting to a failure of full and frank disclosure. The over four-month delay in filing the application was unexplained and unreasonable. The motion was dismissed with costs to the plaintiff. Delivery of the ruling, scheduled for 27th February 2019, was delayed by the judge's medical leave, for which the delay was regretted.

Key legal issues

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01

Whether the default judgment should be set aside under the court's discretion

Holding

The application was dismissed. The applicant had advocates on record (Ochieng-Odhiambo & Co. Advocates) who filed appearance and a replying affidavit, so his claim of never instructing counsel was disingenuous and he failed the full and frank disclosure test; the delay of over four months in moving the court was unexplained and unreasonable.

Reasoning

Applying Mbogoh & Another v. Shah as reiterated in James Kanyiita Nderitu, the court distinguished regular from irregular default judgments. Here service was not denied and appearance was filed, making it a regular default judgment. The applicant attended court on 10th November 2017 when judgment was looming but took no steps, and after judgment waited over four months without explanation. The court found the delay unreasonable and the application designed to delay justice.

p. 2
02

Duty of full and frank disclosure in discretionary applications

Holding

The applicant's assertion that he never instructed an advocate was contradicted by the record showing appearance filed on 18th February 1992 and a replying affidavit filed on 20th March 1992 drawn by the advocates on record.

Reasoning

The court held that candour is a precondition to invoking the court's discretion. The documentary record contradicted the applicant's sworn assertion, disqualifying him from discretionary relief and evidencing a deliberate attempt to delay the course of justice.

p. 2

Legal principles established

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  • In an application to set aside a regular default judgment, the court exercises an unfettered discretion considering the reason for default, the length of delay, whether triable issues are raised, prejudice and the interest of justice.
  • A party seeking the court's discretionary remedy must make full and frank disclosure, and the discretion will not assist a party deliberately seeking to delay justice.

Court orders

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  1. 1.The Notice of Motion dated 7th September 2018 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11

Cases cited (6)

  • Mbogoh & Another v. Shah
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Mbogo & Another v. Shah
  • Patel v. E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Chemwolo & Another v. Kubende
    [1986] KLR 492
  • CMC Holdings v. Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Inherent discretion of the court and Order 10 rule 11 of the Civil Procedure Rules (setting aside default judgment)

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, "Titus Ng’ang’a Kamuyu v Joseph Gitagia Mutheki & another [2019] KEELC 2425 (KLR)", Case Analysis (2019). Case No 44 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2425/eng@2019-07-15

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