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ELCPartially Allowed· [2019] KEELC 3269 (KLR)

Pascal Netia Naika v James Nalianya Wangatia & another [2019] KEELC 3269 (KLR)

High Court of Kenya
8 May 2019
1,023 words in judgment
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The bottom line

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Kenya's High Court set aside a default judgment against a landowner who missed trial because his advocate had stopped practising, but ordered him to move fast.

What this practically means

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Executive summary

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The 2nd defendant/applicant, facing imminent eviction from land parcels Bunyala/Budonga/1808 and Bunyala/Budonga/929 following an ex parte judgment delivered on 16th May 2018, applied under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 9 Rule 9(a) and Order 12 of the Civil Procedure Rules 2010, and Article 159 of the Constitution. He sought leave for E.K. Owinyi & Co. Advocates to replace M/s Wafula Wawire & Co. Advocates, stay of execution, setting aside of the ex parte proceedings and judgment, and leave to defend the suit. He argued his former advocates had gone out of active practice without informing him, he was never served with a hearing notice, and an advocate's mistakes should not be visited on a litigant. The respondent opposed, contending the application was an afterthought and belated, that the defendant had been served with the hearing date and had a defence on record, and that litigation must come to an end within a reasonable time. The court found there was inordinate delay in filing the application but that the reasons given were excusable. Applying Utalii Transport Company Ltd v NIC Bank and the test in Ivita v Kyumbu - whether the delay is prolonged and inexcusable and whether justice will be done despite the delay - the court allowed the application on condition that the applicant obtain a hearing date of the main suit within thirty days. Costs were ordered to be in the cause. Delivered at Kakamega by N.A. Matheka, Judge, on 8th May 2019.

Key legal issues

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01

Whether the delay of about four months in filing the application to set aside the ex parte judgment was excusable

Holding

Yes - despite inordinate delay, the reasons given were excusable and justice required setting aside the judgment

Reasoning

The court noted that judgment was entered on 16th May 2018 and the application was filed on 24th September 2018, which it found to be inordinate delay. The defendant had been served with the hearing date and failed to attend court. However, the court considered the reasons given - the former advocate's firm was no longer in active practice and the applicant was unaware of the proceedings - and found them excusable, applying the Ivita v Kyumbu test that justice must be done despite the delay.

p. 2
02

Whether a litigant should be condemned unheard due to an advocate's failure

Holding

The court found the application merited and set aside the ex parte judgment, allowing the applicant to defend the suit

Reasoning

The applicant argued that his former advocates failed to inform him of the case and that mistakes of an advocate should not be visited on a litigant. The respondent countered that the applicant was the owner of the case and bore responsibility for the delay. The court, balancing the interests of justice for both parties, exercised its discretion to set aside the ex parte judgment subject to the condition that the applicant obtain a hearing date within thirty days.

p. 2

Legal principles established

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  • It is the primary duty of the plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court.
  • The test for reinstatement/setting aside after delay is whether the delay is prolonged and inexcusable and whether justice will be done despite the delay.

Court orders

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  1. 1.The application dated 24th September 2018 is granted
  2. 2.Leave granted for E.K. Owinyi & Co. Advocates to act for the 2nd defendant/applicant in place of M/s Wafula Wawire & Co. Advocates
  3. 3.The ex parte proceedings and judgment delivered on 16th May 2018 and orders made pursuant thereto set aside
  4. 4.Leave granted to the 2nd defendant/applicant to defend the suit
  5. 5.Condition imposed that the applicant obtains a hearing date of the main suit within thirty (30) days from the date of the ruling
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules 2010Order 9 Rule 9(a)
  • Civil Procedure Rules 2010Order 12
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another
    (2014) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rule 9(a) and Order 12 of the Civil Procedure Rules 2010; Article 159 of the Constitution

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, "Pascal Netia Naika v James Nalianya Wangatia & another [2019] KEELC 3269 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3269/eng@2019-05-08

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