Elizabeth Ndulu Mathuva v Joseph Mbiu Muthiani [2020] KEELC 1641 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside an ex-parte judgment because the defendant's former lawyer's mistakes could not be blamed on him.
What this practically means
#Executive summary
#Key legal issues
#Whether the mistakes of the Defendant's former advocate should be visited upon him
No. The former advocate never applied to cease acting nor notified the client in writing, hence remained on record, and the client made several attempts to follow up.
The court noted the firm of Nathan Mbullo & Associates indicated on a hearing notice that they had no instructions but never filed an application to cease acting, nor wrote to the client at his last known address. The client deposed that he made several unsuccessful visits to the advocate's office. The court held the litigant could not be blamed for the outcome and agreed mistakes of counsel should not be visited on him.
Whether the defence raises triable issues warranting setting aside the ex-parte judgment
Yes. The defence dated 20th December 2016 raises trust and, in the alternative, adverse possession, which is a good defence on merits.
Applying the Shah vs Mbogo and Patel vs East African Cargo Handling principles, the court found the applicant had proffered sufficient cause for the delay. Although the judgment was regular, a defence on the merits existed - claims of purchase of the suit property and adverse possession - which need not necessarily succeed at trial but constitutes a triable issue deserving adjudication after a full hearing.
Whether the court has discretion to set aside its own ex-parte judgment and the order of the taxing officer
Yes; the discretion was exercised to avoid injustice to the Defendant, and prayers 2, 5 (in part) and 6 were granted.
Relying on the overriding objective provisions (sections 1A and 1B of the Civil Procedure Act) and Shah vs Mbogo, the court held the discretion to set aside ex-parte judgments exists to avoid injustice from accident, inadvertence or excusable mistake. Having found mistake of counsel and a meritorious defence, the court exercised its discretion in favour of the Defendant while awarding thrown away costs to the Plaintiff.
Legal principles established
#- Where counsel on record fails to file an application to cease acting or to inform the client in writing through his last known address that they no longer wish to act, the firm remains on record for all practical purposes, and mistakes of such advocate should not be visited upon the litigant.
- A regular ex-parte judgment may be set aside where the applicant shows a defence on the merits in the sense of a triable issue, not necessarily a defence that must succeed.
Court orders
#- 1.Leave granted to the firm of O. N. Makau & Mulei Advocates to act for the Defendant/Applicant in place of the firm of Nathan Mbullo & Associates Advocates (prayer 2)
- 2.The order against the Defendant issued in the judgment of the court on 17th April 2018 set aside to the extent that it relates to the subsequent hearing of the main suit, and the Defendant allowed to put in the relevant pleadings and the matter set down for hearing (prayer 5)
- 3.The order of the taxing officer issued on 12th June 2019 set aside (prayer 6)
- 4.The Plaintiff/Respondent awarded thrown away costs
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act and Order 12 Rule 7, Order 9 Rules 9 and 10, Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Ndulu Mathuva v Joseph Mbiu Muthiani [2020] KEELC 1641 (KLR)", Case Analysis (2020). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1641/eng@2020-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.