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ELCDismissedNot stated in judgment· [2020] KEELC 1509 (KLR)

Ng’ang’a Wainaina v Hamisi Bwana & 3 others [2020] KEELC 1509 (KLR)

Environment and Land Court
30 July 2020
2,309 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to reopen a land case because the defendants ignored it for years and offered no real defence.

What this practically means

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Executive summary

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The Defendants sought to set aside ex parte proceedings of 17th May, 2018 and a regular judgment of 18th January, 2019 entered against them in a claim for eviction from Ndalani/Ndalani Block 1/1618, and to have the matter proceed as a defended cause. They blamed their former advocate, who filed a defence in June 2013 but never attended the hearing nor informed them of it; they only learned of the judgment when served with a decree in August 2019. The Plaintiff opposed, arguing the judgment was regular, service on the former advocate was effectual under Order 9 Rule 3, and the Defendants had not shown a defence raising triable issues. The court set out the settled principles for setting aside a regular judgment - sufficient reason, the desirability of deciding disputes on merits, and that lapses should not necessarily debar a litigant - but held that a litigant must remain vigilant and pursue their case. Having filed a defence in 2013, the Defendants never checked the status of the suit until prompted by execution, mirroring the indolent litigant in Neeta Gohil v Fidelity Commercial Bank. Further, although they claimed over twenty years' settlement on the land, they neither pleaded adverse possession nor fraud in the acquisition of title, so the defence was a mere denial raising no triable issue. The Notice of Motion dated 3rd September, 2019 was dismissed with no orders as to costs.

Key legal issues

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01

Whether blame on a former advocate for non-attendance constitutes sufficient reason to set aside a regular judgment

Holding

No - the Defendants were indolent and did not follow up their suit; service on their advocate was effectual and blame alone does not suffice

Reasoning

The court accepted that a litigant is bound by an advocate's acts and omissions but that courts must guard against unjust results. Yet a litigant must remain vigilant and pursue prosecution of their case. Having filed a defence in 2013, the Defendants never checked the suit's progress until served with a decree in August 2019, over a year after the hearing. Their inaction mirrored the indolence condemned in Neeta Gohil, disentitling them to the discretionary relief.

p. 3
02

Whether the Defendants' defence raised triable issues

Holding

No - the defence was a mere denial; no plea of adverse possession or fraud was raised despite alleging long settlement on the land

Reasoning

Although the Defendants claimed to have settled on the suit property for over twenty years, they never pleaded adverse possession nor alleged the Plaintiff's title was obtained fraudulently or by mistake. The Plaintiff is the registered proprietor. A bare denial of the claim does not raise a triable issue, so allowing the matter to proceed as a defended cause would serve no purpose.

p. 3

Legal principles established

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  • A litigant must remain vigilant and keep abreast of the status of a matter in which they have instructed counsel; blame against an advocate alone is insufficient to set aside a regular judgment
  • Service of process on a party's recognized agent or advocate is as effectual as service on the party in person unless the court otherwise directs
  • Principles for setting aside a regular judgment: sufficient reason for the failure, the requirement that disputes be decided on their merits, and that lapses should not necessarily debar a litigant

Court orders

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  1. 1.The Application dated 3rd September, 2019 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1 & 12
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Civil Procedure Rules, 2010Order 9 Rule 1
  • Civil Procedure Rules, 2010Order 9 Rule 3

Cases cited (9)

  • Patel vs. E. A. Cargo Handling Services Ltd
    (1974) E. A. 75
  • Wachira Karani vs. Bildad Wachira
    [2016] eKLR
  • Ongom vs. Owota
    SCCA (2003) KALR
  • Neeta Gohil vs. Fidelity Commercial Bank Limited
    [2019] eKLR
  • Savings and Loans Limited v Susan Wanjiru Muritu
    Nairobi (Milimani) HCCS No. 397 of 2002
  • Shanti vs. Handocha
    (1973) EA 207
  • Essaji vs. Solanki
    (1968) EA 218
  • Mugo vs. Wanjiru
    (1970) EA 481
  • Attorney General vs. Oriental Construction Limited
    (1991) UGSC 15
Jurisdiction invoked
Section 3A and 63(e) of the Civil Procedure Act; Order 12 Rule 7, Order 51 Rule 1 & 12 and Order 22 Rule 22 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, "Ng’ang’a Wainaina v Hamisi Bwana & 3 others [2020] KEELC 1509 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1509/eng@2020-07-30

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