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ELCDismissedELCA Case No. 32 of 2019· [2020] KEELC 1918 (KLR)

John Wanguche Were v John Umwebula Kulubi [2020] KEELC 1918 (KLR)

Environment and Land Court
23 June 2020
NMN.A. Matheka
1,341 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that courts will only set aside default judgments where you show a genuine defence and a reasonable excuse.

What this practically means

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Executive summary

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The appellant, John Wanguche Were, appealed to the Environment and Land Court at Kakamega against a ruling by Hon. T.A. Odera, Senior Principal Magistrate, in Environment & Land Case No. 12 of 2018 delivered on 16th August 2019, which dismissed his application dated 23rd April 2019 seeking to set aside a judgment entered in default of attendance. The appellant advanced nine grounds, principally that the magistrate failed to consider the conditions for setting aside default judgments, that his defence raised serious triable issues, that the magistrate wrongly presumed he had not instructed his former advocate, and that the mistake of an advocate should not be visited upon a litigant. He sought setting aside of the orders, a rehearing de novo before another judicial officer, and that each party bear its own costs. Counsel relied on Kidero v Waititu and Patel v E.A. Cargo Handling Services; the respondent filed no submissions. The court, N.A. Matheka J, reviewed the established principles from Shah v Mbogo and related authorities that setting aside an ex parte judgment is a discretionary exercise aimed at avoiding injustice from accident, inadvertence or excusable mistake, not designed to assist deliberate obstruction, and that a defence raising triable issues must be shown. On perusal of the lower court record, the court found the magistrate had given a reasoned judgment, that the defence raised no triable issues, and that the appellant had not demonstrated sufficient or reasonable cause. Invoking Mwanasokoni v Kenya Bus Service, the court held it would not interfere with the trial court's findings. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Whether the trial magistrate's refusal to set aside the default judgment was a proper exercise of discretion

Holding

The discretion was judiciously exercised; the appellant demonstrated no sufficient or reasonable cause for setting aside the judgment

Reasoning

The court reviewed the principles in Shah v Mbogo and related authorities: the discretion to set aside ex parte judgments exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction. After perusing the lower court record, the court found the magistrate gave a reasoned judgment, the defence lacked triable issues, and the defendant had a history of litigating the same land matter and losing.

p. 2
02

Whether the appellant's defence raised triable issues

Holding

The defence did not raise any triable issues warranting setting aside of the ex parte judgment

Reasoning

Relying on Tree Shade Motors Ltd v D.T. Dobie & Co. Ltd, the court confirmed that an applicant must show a defence raising triable issues to warrant setting aside an ex parte judgment. On perusal of the record, the trial magistrate had heard the plaintiff, upheld the claim and dismissed the defence and counterclaim, noting prior failed litigation over the same land before tribunals and the High Court.

p. 2

Legal principles established

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  • Setting aside an ex parte judgment is a matter of judicial discretion exercised to do justice between the parties, and will not be exercised to assist those who deliberately obstruct or delay the course of justice
  • An appellate court will not ordinarily interfere with findings of fact of the trial court unless they were based on no evidence, a misapprehension of it, or wrong principles

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Cases cited (9)

  • Kidero & 5 Others v Waititu & Others
    Supreme Court Petition No. 18 of 2014
  • Patel v E.A. Cargo Handling Services Ltd
    (1974) EA 75
  • Esther Wamaitha Njihia & two others v Safaricom Ltd
    (2014) eKLR
  • Shah v Mbogo
    (1979) EA 116
  • Sebei District Administration v Gasyali
  • Lucy Bosire v Nyankoni Manga Robi
    (2016) eKLR
  • Samson K Ole Nampaso v Kaana Ka Arume Co Ltd
    (2010) eKLR
  • Tree Shade Motors Limited v D.T Dobie & Company (K) Limited and Joseph Rading Wasambo
    CA 38 of 1998
  • Mwanasokoni v Kenya Bus Service
    (1982-88) 1 KAR 870
On appeal from
Senior Principal Magistrate's Court (Environment and Land) at Kakamega
Environment & Land Case No. 12 of 2018
Jurisdiction invoked
Appellate jurisdiction over appeals from the Senior Principal Magistrate's Environment & Land Case under the Environment and Land Court Act

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, "John Wanguche Were v John Umwebula Kulubi [2020] KEELC 1918 (KLR)", Case Analysis (2020). ELCA Case No. 32 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1918/eng@2020-06-23

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