Lydia Wambui Gitau & another v Saidi Mwinyikai Thomas [2019] KEELC 2922 (KLR)

Environment and Land Court

21 June 2019

AOA. Omollo

1,144 words in judgment

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The bottom line

A Kenyan court refused to overturn a judgment because the defendant, though properly served with the hearing notice, never filed a defence or attended the hearing.

What this practically means

Executive summary

The defendant/applicant moved the court by notice of motion dated 20th September 2018 under Order 10 rule 1, Order 22 rule 1 and Sections 1A, 1B and 3A of the Civil Procedure Rules and Act, seeking setting aside and/or variation of a judgment and consequential decree, and unconditional leave to defend the suit. The applicant contended that the judgment was irregularly obtained because the hearing notice for 13th February 2018 was improperly served, allegedly at the advocates' Mombasa office rather than their Ukunda office handling the matter. The plaintiff opposed, asserting due service on the defendant's advocates and that counsel had participated in the proceedings. Both parties filed written submissions. The court found that the defendant entered appearance on 27th September 2016 and filed grounds of opposition, but no statement of defence was ever filed, and the application did not plead a defence on record or a good defence. The annexed affidavit of service showed the hearing notice stamped as received at the advocates' Ukunda office on 4th December 2017 by a clerk, contradicting the defendant's own claim of service at Mombasa. Notably, the defendant's counsel filed closing submissions dated 16th March 2018, demonstrating participation. Applying the Shah v Mbogo principles, the court held the discretion could not assist a party deliberately obstructing justice, and that equity aids the vigilant, not the indolent. The application was found unmerited and an abuse of the court process, and was dismissed with costs to the plaintiff.

Key legal issues

Whether the judgment should be set aside for alleged improper service

Holding

The application was dismissed; the defendant was properly served with the hearing notice and gave no justification for non-attendance

Reasoning

The affidavit of service showed the hearing notice was stamped as received by the defendant's advocates' Ukunda office on 4th December 2017. The defendant's own supporting affidavit contradicted the affidavit of service by claiming service occurred at Mombasa. The defendant's counsel had even filed closing submissions, showing participation, and no defence was on record. The application was therefore an abuse of the process.

p. 2

Whether the defendant should be granted leave to defend

Holding

Leave was refused because no statement of defence existed and no good defence was pleaded

Reasoning

The court noted the defendant had only entered appearance and filed grounds of opposition, with no statement of defence filed. The application did not plead a defence on record or a good defence. Equity aids the vigilant, not the indolent, and the defendant was obstructing the plaintiff from enjoying the fruits of the judgment.

p. 2

Legal principles established

The court's discretion to set aside a judgment will not be exercised to assist a party who deliberately seeks to obstruct or delay the cause of justice

Court orders

1.The defendant's notice of motion dated 20th September 2018 is dismissed
2.Costs of the application to the plaintiffs

Authorities

Legislation

Civil Procedure RulesOrder 10 rule 1
Civil Procedure RulesOrder 22 rule 1
Civil Procedure ActSections 1A, 1B & 3A

Cases cited (4)

Trans Africa Assurance Co. Ltd –versus- Lincoln Mujuni
(2014) UGCOMMC 215
Shah –versus- Mbogo & Another
(1967) E.A 116
Esther Wamantha Njihia & 2 Others versus – Safaricom LTD
(2014) eKLR
Patel –versus- E. A Cargo Service Ltd
C. A No. 2 of 1924

Jurisdiction invoked: Order 10 rule 1, Order 22 rule 1 and Sections 1A, 1B & 3A of the Civil Procedure Rules and Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Lydia Wambui Gitau & another v Saidi Mwinyikai Thomas [2019] KEELC 2922 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2922/eng@2019-06-21

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