Christine Andree Joshi & 2 others v Sally Chepwogen [2019] KEELC 4482 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an ex-parte judgment and eviction orders, ruling landowners deserve a fair hearing despite their advocate's mistakes.
What this practically means
#Executive summary
#Key legal issues
#Whether the firm of Makori Karimi & Co Advocates was properly on record
The firm is properly on record; the respondent's counsel explained that Ransley McVicker & Shaw and Virginia Shaw & Company are one and the same firm.
Counsel for the applicant argued the consent was entered with a firm that had been replaced. Counsel for the respondent explained the two firm names refer to the same firm, and the court accepted that explanation without more, finding no impropriety in the firm being on record.
Whether the Applicant was properly served with the application for eviction
Despite affidavits of service on the Applicant's former advocates, the court accepted the Applicant's claim that she was unaware of the applications.
The respondent relied on affidavits of service sworn by a process server showing the former advocates were served. The court weighed the Applicant's sworn denial of knowledge, found no reason to doubt it, and applied the principle that an advocate's mistakes should not be visited on the client.
Whether the ex-parte judgment and eviction orders should be set aside
Yes; the Applicant met the conditions for setting aside, subject to thrown away costs, because this being a land matter it should be heard on the merits.
Applying Yamko Yadpaz Industries Ltd v Kalka Flowers and Patel v East Africa Cargo Handling Services, the court found the Applicant had shown she was unaware of the hearing and had a triable defence and counterclaim. Balancing the plaintiff's interest in its judgment, the set-aside was made conditional on thrown away costs of Kshs. 30,000/= within 21 days.
Legal principles established
#- The mistakes of an advocate should not be visited upon the client.
- A defendant who was not properly served with the hearing notice is entitled to have the ex-parte judgment set aside.
- A defence on the merits means a triable issue, not a defence that must succeed.
Court orders
#- 1.Set aside the ex-parte judgment entered on 26.1.2018, the eviction orders dated 16th January 2019 and all consequential orders thereto
- 2.Condition precedent: the Defendant/Applicant to pay the Plaintiff/Respondent thrown away costs of Kshs. 30,000/= within 21 days, failing which the orders automatically lapse
- 3.Costs of the application to be borne by the Applicant
- Jurisdiction invoked
- Inherent powers of the court to set aside ex-parte judgment and orders under the civil procedure regime; no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christine Andree Joshi & 2 others v Sally Chepwogen [2019] KEELC 4482 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4482/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.