Muchangi Nduati Ngingo t/a Muchangi Nduati & Company Advocates v Commissioner of Lands & 2 others [2020] KEELC 988 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 27th September, 2018 should be set aside under Order 12 Rule 7
Dismissed; the 3rd defendant was served through and represented by instructed advocates and was aware of the suit throughout
The court exercised its discretion under Order 12 Rule 7 judiciously. Evidence from the plaintiff and Steven Muregi Chege advocate showed the firm was instructed, filed a notice of appointment and defence, appeared throughout, was paid Kshs. 60,000/=, and kept the 3rd defendant informed including of judgment. The 3rd defendant had even sought to transfer its file to another firm in 2015. Its claim of first learning of the suit on 14th June 2019 was disbelieved, and no mistake or blunder was pleaded.
Whether eviction orders could issue in enforcement of the decree
Dismissed; no eviction order existed in the plaint, judgment or decree
The plaintiff's amended plaint dated 30th April, 2010 did not seek eviction orders. The judgment of 27th September, 2018 cancelled titles and directed issuance of new titles to the plaintiff but contained no eviction order. The decree correspondingly lacked an eviction order, and a court cannot enforce a nonexistent order. The plaintiff was told to institute fresh proceedings if eviction became necessary.
Legal principles established
#- A court's discretionary powers must be exercised judiciously and not capriciously, upon legal principles and with a view to doing real and substantial justice
- The discretion to set aside an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the cause of justice
- A court cannot enforce an order that does not exist in the judgment or decree
Court orders
#- 1.The plaintiff's application dated 28th August, 2019 is dismissed
- 2.The 3rd defendant's application dated 18th June, 2019 is dismissed save for the order seeking leave for the firm of Kinyanjui Kirimi & Company Advocates to come on record for the 3rd defendant granted on 18th September, 2019
- 3.Each party shall bear its own costs of the two applications
- Jurisdiction invoked
- Original civil jurisdiction (land dispute); no constitutional/statutory basis expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchangi Nduati Ngingo t/a Muchangi Nduati & Company Advocates v Commissioner of Lands & 2 others [2020] KEELC 988 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/988/eng@2020-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.