Pascal Netia Naika v James Nalianya Wangatia & another [2019] KEELC 3269 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the delay of about four months in filing the application to set aside the ex parte judgment was excusable
Yes - despite inordinate delay, the reasons given were excusable and justice required setting aside the judgment
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.
Whether a litigant should be condemned unheard due to an advocate's failure
The court found the application merited and set aside the ex parte judgment, allowing the applicant to defend the suit
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.
Legal principles established
#- 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
#- 1.The application dated 24th September 2018 is granted
- 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.The ex parte proceedings and judgment delivered on 16th May 2018 and orders made pursuant thereto set aside
- 4.Leave granted to the 2nd defendant/applicant to defend the suit
- 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.Costs of the application to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.