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ELCPartially AllowedNot stated in the judgment (suit filed 14th March 2014, Thika)· [2019] KEELC 3157 (KLR)

John Njoroge v Stephen Mungai Gacheru & another [2019] KEELC 3157 (KLR)

Environment and Land Court
6 May 2019
LGL. Gacheru
1,660 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Thika court refused to undo ex parte proceedings and blocked a late defence amendment, but allowed the defendants one cross-examination chance.

What this practically means

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Executive summary

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The Plaintiff sued for specific performance of a sale agreement dated 25th September 2007 for a quarter acre to be excised from Thika Municipality Block 10/17 for Kshs.1,500,000/=, claiming he paid most of the price, took possession and built a home, but the 1st Defendant refused to transfer. The Defendants admitted the agreement but blamed their former advocates for the failure to complete and sought dismissal of the suit. The matter proceeded exparte on 15th May 2018 after the court declined an adjournment, and the Plaintiff testified. The Defendants then filed two Notices of Motion dated 28th June 2018: one seeking vacation of the exparte proceedings on grounds that the 1st Defendant was unwell and his counsel abandoned the brief, invoking Article 50 of the Constitution; the other seeking leave to amend the defence. The Plaintiff opposed both, citing lack of reasonable cause, inordinate delay and afterthought. The court, L. Gacheru J, noted the Defendants had not complied with Order 11 since 2014, found the delay in bringing the setting-aside application unexplained and prejudicial to the Plaintiff, and declined to set aside the proceedings. However, in the interest of justice under Section 3A, it allowed the Plaintiff to be recalled for cross-examination, with throw away costs of Kshs.15,000/= to the Plaintiff. The amendment application was dismissed with costs, the court holding that unexplained delay would further prejudice the Plaintiff and that the limitation issue could be argued in submissions as a point of law. Ruling delivered at Thika on 6th May 2019.

Key legal issues

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01

Whether to set aside exparte proceedings

Holding

Application refused; delay unexplained and setting aside would prejudice the Plaintiff, but the Plaintiff is to be recalled for cross-examination in the interest of justice

Reasoning

The court applied the principles for setting aside exparte judgments, noting the Defendants and their advocate were absent, had not complied with Order 11, and delayed from 15th May to 28th June 2018 without explanation. Balancing this against the four-year delay suffered by the Plaintiff, the court exercised its inherent Section 3A jurisdiction by recalling the Plaintiff for cross-examination rather than vacating the proceedings.

p. 3
02

Whether to allow amendment of the defence

Holding

Application dismissed; amendment sought after inordinate unexplained delay would further delay the suit and prejudice the Plaintiff

Reasoning

While amendments are freely allowed before judgment under Order 8 Rules 3 & 5, the Defendants filed their defence in 2014 and only sought amendment after the hearing had proceeded in 2018. The unexplained delay and resulting prejudice to the Plaintiff outweighed the amendment's utility, especially since the limitation point could be argued in submissions as a point of law.

p. 3

Legal principles established

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  • Amendments to pleadings should be freely allowed at any stage before judgment provided no prejudice or injustice that cannot be compensated in costs is caused to the other party
  • Adjournments are granted at the discretion of the court and an unreasonable reason for absence justifies refusal

Court orders

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  1. 1.The Defendants' first Notice of Motion dated 28th June 2018 allowed only in terms of prayer No.3
  2. 2.The Plaintiff to be recalled for cross-examination by the Defendants' Advocates on his evidence already adduced
  3. 3.Defendants to pay throw away costs of Kshs.15,000/= to the Plaintiff
  4. 4.The second Notice of Motion dated 28th June 2018 seeking to amend the defence dismissed with costs to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 8 Rules 3 & 5; Order 11
  • Constitution of Kenya 2010Article 50

Cases cited (1)

  • Central Kenya Ltd Vs Trust Bank & 4 Others
    C.A No.222 of 1998
Jurisdiction invoked
Sections 3, 3A, 1A and 1B of the Civil Procedure Act and Order 8 Rules 3 & 5 of the Civil Procedure Rules

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, "John Njoroge v Stephen Mungai Gacheru & another [2019] KEELC 3157 (KLR)", Case Analysis (2019). Not stated in the judgment (suit filed 14th March 2014, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3157/eng@2019-05-06

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