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ELCDismissedNotice of Motion dated 3rd August, 2017 (suit filed 28th November, 2000)· [2019] KEELC 3954 (KLR)

Samuel Mburu Kago v Julius Maina Muchina & 2 others [2019] KEELC 3954 (KLR)

Environment and Land Court
21 March 2019
1,696 words in judgment
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The bottom line

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A Kenyan court refused to reopen a 19-year-old land case because the defendant gave no good reason for missing the hearing and waited months to act.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Okong'o J) determined the 2nd defendant's Notice of Motion dated 3rd August, 2017 seeking to set aside the proceedings of 30th June, 2016 and the judgment of 27th June, 2017, so she could defend the suit filed on 28th November, 2000. The hearing had proceeded on 30th June, 2016 in the 2nd defendant's absence after proper fixing of the date and service of a hearing notice; her case was marked closed and judgment was entered for the plaintiff on 27th June, 2017. She contended that the suit was not in the cause list and that a miscarriage of justice would result. The plaintiff opposed, asserting no compelling excuse was given and that the application was an abuse of process given the pending appeal. Applying the principles in Shah v Mbogo, E.T Monks and Chemwolo, the court found no reasonable excuse for non-attendance: the cause-list allegation was unsupported, and other advocates had attended. Further, the 2nd defendant waited four months after learning of the proceedings before moving the court, conduct inconsistent with a party keen to defend. The court held that public policy demands litigation come to an end, a suit then nearly 19 years old should not be resurrected, and the discretion would not be exercised in favour of the indolent. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the 2nd defendant demonstrated a reasonable excuse for non-attendance at the hearing of 30th June, 2016

Holding

The court found no reasonable excuse; the claim that the suit was not in the cause list was unsupported by evidence

Reasoning

The 2nd defendant's advocates alleged the suit was not listed in the cause list, but the plaintiff's and 3rd defendant's advocates attended, undermining that claim. No evidence was adduced of efforts made to find out why the matter was not listed. The allegation was therefore unproven and did not constitute a reasonable excuse warranting setting aside the ex parte proceedings.

p. 2
02

Whether the 2nd defendant's conduct after learning of the proceedings disentitled her to discretionary relief

Holding

Her 4-month delay in moving to set aside the proceedings, despite knowledge within 3 months, showed she was not keen on defending the suit; the discretion was declined

Reasoning

The 2nd defendant learned by mid-September 2016 that the hearing had proceeded in her absence but took no action until filing an application on 13th January, 2017. The court, being a court of law and equity, declined to exercise its discretion in favour of the indolent, holding that justice looks at both sides and that litigation must come to an end.

p. 2

Legal principles established

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  • The discretion to set aside an ex parte judgment is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice
  • Public policy demands that litigation must come to an end and the court is reluctant to exercise its discretion in favour of the indolent

Court orders

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  1. 1.The Notice of Motion dated 3rd August, 2017 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Cases cited (3)

  • E.T Monks & Co. Limited v Evans
    [1985] KLR 584
  • Phillip Kiptoo Chemwolo and Another v Angustine Kubede
    [1982 – 1988] KAR 1036
  • Shah v Mbogo
    [1967] E. A. 116
Jurisdiction invoked
Inherent/discretionary power of the court to set aside ex parte proceedings and judgments entered in default (discretion exercised on established principles)

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, "Samuel Mburu Kago v Julius Maina Muchina & 2 others [2019] KEELC 3954 (KLR)", Case Analysis (2019). Notice of Motion dated 3rd August, 2017 (suit filed 28th November, 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3954/eng@2019-03-21

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