Samuel Mburu Kago v Julius Maina Muchina & 2 others [2019] KEELC 3954 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2nd defendant demonstrated a reasonable excuse for non-attendance at the hearing of 30th June, 2016
The court found no reasonable excuse; the claim that the suit was not in the cause list was unsupported by evidence
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.
Whether the 2nd defendant's conduct after learning of the proceedings disentitled her to discretionary relief
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 3rd August, 2017 is dismissed
- 2.Costs of the application awarded to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.