Kariuki Kamau v Nancy Wanjiru Gicheru & 3 others [2019] KEELC 4616 (KLR)
The bottom line
#A Kenyan land defendant who ignored her own court case for four years lost her bid to reverse a judgment entered in her absence.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without undue delay
The application was brought without undue delay, filed three months after the applicant attended taxation in February 2018.
The applicant was served in 2013 and instructed FIDA who filed appearance, but did nothing until served with a notice of taxation in October 2017. The ex parte judgment was delivered on 17th March 2017. She attended taxation on 17th February 2018 and filed the application three months later. The court therefore found no undue delay, but this alone did not render the application merited.
Whether the draft defence raises triable issues
The draft defence raised no triable issues and was a mere sham, as the applicant admitted the suit property is registered in the plaintiff's name.
Paragraph 2 of the draft defence admitted registration of LR No. Kiambaa/Thimbigua/1121 in the plaintiff's name. Under Section 24 of the Registration of Titles Act framework cited by the court, the registered proprietor has absolute rights over the parcel. The applicant's claim as daughter-in-law of the plaintiff conferred no legal right to the land, so the defence disclosed no prima facie triable defence.
Whether the ex parte judgment should be set aside in the exercise of the court's discretion
The discretion was not exercised in the applicant's favour; she slept on her rights for four years and the judgment was a regular one.
Applying Shah v Mbogo, the discretion is not designed to assist a litigant who obstructs or delays the course of justice. The applicant instructed FIDA in 2013, then took no steps until jolted by a notice of taxation in 2017, and ought to have followed up on the progress of her case. Since the judgment was regular and the defence sham, setting aside was not warranted.
Legal principles established
#- The discretion to set aside an ex parte judgment is meant to avoid injustice from accident, inadvertence or excusable mistake, not to assist a person who deliberately obstructed or delayed the course of justice.
- Where a regular judgment has been entered, the court will not usually set it aside unless satisfied there are triable issues raising a prima facie defence which should go to trial.
Court orders
#- 1.The notice of motion dated 10th May 2018 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Inherent discretion of the court to set aside ex parte judgment under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki Kamau v Nancy Wanjiru Gicheru & 3 others [2019] KEELC 4616 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4616/eng@2019-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.