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ELCDismissedELC Case of 2011 (Plot No. 89, part of L.R. No. 6614/8 Tulon Farm)· [2019] KEELC 4222 (KLR)

Jane Cherutich Maswai v Samuel Kiplagat Misoi [2019] KEELC 4222 (KLR)

Environment and Land Court
18 March 2019
MNMwangi Njoroge
2,587 words in judgment
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The bottom line

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A Kenyan land defendant who claimed he never knew his hearing date lost his bid to overturn the judgment, because the court believed his lawyer had told him.

What this practically means

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Executive summary

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The defendant/applicant, Samuel Kiplagat Misoi, moved the Environment and Land Court at Kitale by Notice of Motion dated 10/12/2018 under Order 45(2)(1) and Order 51 of the Civil Procedure Rules, 2010 and Sections 3 and 3A of the Civil Procedure Act, seeking review of the court's orders of 31/7/2018 and setting aside of the ex parte judgment delivered on 18/9/2018 in the plaintiff's suit over Plot No. 89, part of L.R. No. 6614/8 (Tulon Farm), together with a stay of execution of the decree and certificate of costs. He contended that his then advocate, Mr. Katama Ngeywa, never informed him of the hearing date, that his cease-acting application dated 30/7/2018 ought to have been heard before trial, and that he was condemned unheard. The plaintiff opposed, asserting the hearing date had been taken by consent and that the defendant knew of it. The court framed a single issue: whether the ex parte judgment and consequential orders should be set aside under Order 10 Rule 11. Applying the regular/irregular default judgment distinction from James Kanyiita Nderitu, the overriding objective, and Pithon Waweru Maina, the court found the judgment regular (the advocate was still on record), disbelieved the applicant's claim of ignorance of the hearing date, and held the last-minute cease-acting application could not justify adjournment, his conduct bearing hallmarks of an intention to delay. The application was dismissed with costs.

Key legal issues

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01

Whether the ex parte judgment of 18/9/2018 should be set aside under Order 10 Rule 11 of the Civil Procedure Rules

Holding

The application was dismissed. The court found as a fact that the defendant knew of the hearing date, that his advocate had informed him, and that his conduct was aimed at delaying the suit; the discretion under Order 10 Rule 11 was therefore not exercised in his favour.

Reasoning

The court applied Order 10 Rule 11 and the overriding objective. It distinguished the James Kanyiita Nderitu line on regular versus irregular default judgments, finding the judgment regular since the advocate was still on record. The cease-acting application was filed on the hearing date itself and was not served, so it could not justify adjournment or constitute a mistake on the face of the record. Citing Pithon Waweru Maina, the court held the discretion is not designed to assist one deliberately seeking to delay justice.

p. 3
02

Whether the applicant was condemned unheard

Holding

No. The court held the defendant had been informed of the hearing date by his advocate and could have attended court, so his right to be heard was not violated.

Reasoning

Although there was no evidence of service of the cease-acting application, the court deemed the advocate still acting for the defendant on the hearing date. The court declined to believe the applicant's explanation of ignorance of the hearing date, noting counsel must be presumed to act on full instructions unless the contrary is proved, and that had the defendant availed himself, the matter might not have proceeded ex parte.

p. 3

Legal principles established

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  • A regular default judgment may be set aside under Order 10 Rule 11 in the court's discretion, whereas an irregular default judgment (entered against an unserved defendant) is set aside ex debito justitiae as a matter of right.
  • An application to cease acting filed on the very morning of the hearing date cannot found a claim of mistake on the record nor entitle the client to an adjournment; fault lies between advocate and client, not with the court.
  • Counsel must be taken to have full instructions and to act in the interests of his client unless the contrary is proved; a client alleging he was not informed of a hearing date bears the onus of proving it.

Court orders

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  1. 1.The applicant's Notice of Motion dated 10/12/2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 45 rule 2(1)
  • Civil Procedure Rules, 2010Order 51
  • Civil Procedure Rules, 2010Order 10 Rule 11
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure ActSection 1A(1)
  • Environment and Land Court ActSection 3

Cases cited (10)

  • James Kanyiita Nderitu & Another
    [2016] eKLR
  • Sagram Singh -vs- Election Tribunal, Koteh
    AIR 1955 SC 664
  • Wachira Karani versus Bildah Wachira
    Nyeri HCCC No. 101 of 2011 [2016] eKLR
  • Pithon Waweru Maina V Thuku Mugiria
    [1983] eKLR
  • Mbogo & Another –vs- Shah
    (1968) EA 98
  • Patel –vs- E.A. Cargo Handling Services Ltd
    (1975) E.A. 75
  • Chemwolo & Another –vs- Kubende
    (1986) KLR 492
  • CMC Holdings –vs- Nzioka
    [2004] I KLR 173
  • Shah v Mbogo
    [1967] EA 116
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
Jurisdiction invoked
Order 45(2)(1) and Order 51 of the Civil Procedure Rules, 2010; Sections 3 and 3A of the Civil Procedure Act; Order 10 Rule 11 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, "Jane Cherutich Maswai v Samuel Kiplagat Misoi [2019] KEELC 4222 (KLR)", Case Analysis (2019). ELC Case of 2011 (Plot No. 89, part of L.R. No. 6614/8 Tulon Farm). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4222/eng@2019-03-18

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