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ELCPartially AllowedNot stated in the judgment as provided· [2020] KEELC 2262 (KLR)

Johnson Gacau Kibera v Lawrence Maina Mwangi [2020] KEELC 2262 (KLR)

Environment and Land Court (E&L), Nakuru
4 June 2020
DOD. O. Ohungo
1,082 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The defendant brought a Notice of Motion dated 6th June 2019 seeking to set aside interlocutory judgment entered in default of defence on 24th December 2018, together with leave to file a defence out of time. The suit, filed on 8th November 2018 by the plaintiff, sought KShs 24,500,000 being the open market value of L.R. Nakuru/Municipality Block 18/159, general damages for non-disclosure, misrepresentation and fraud, costs and interest. The defendant entered appearance on 29th November 2018 but no defence was filed, and judgment was entered as requested for the liquidated sum. The application, supported by an affidavit of the defendant's former counsel Lawrence Macharia Karanja, attributed the default to the advocate handling the matter leaving the firm, and contended the defendant had a defence raising triable issues. The plaintiff opposed, arguing that counsel's failure was no defence and that he was entitled to the fruits of judgment. Applying the principles in Mbogoh & Another v. Shah as restated in James Kanyiita Nderitu, the court held that it had unfettered discretion, that the explanation was valid, and that a litigant should not suffer for counsel's mistake. Noting that only the liquidated aspect had been reduced to judgment and the fraud claims still required trial, and that prejudice to the plaintiff could be compensated by costs, the court set aside the interlocutory judgment and decree, granted the defendant leave to defend with 14 days to file and serve the defence, and awarded the plaintiff costs of the application. The ruling was delivered remotely under the Chief Justice's COVID-19 practice directions on 4th June 2020 at Nakuru.

Key legal issues

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01

Whether to set aside an interlocutory judgment regularly entered in default of defence

Holding

Judgment set aside; defendant granted leave to defend because the reason for default (counsel leaving the firm) was valid, triable issues exist, and prejudice to the plaintiff is compensable by costs

Reasoning

The court applied the Mbogoh & Another v. Shah principles as restated in James Kanyiita Nderitu. Although service and appearance were regular, the explanation for the failure to file defence - the advocate handling the matter left the firm - was held to be valid. Authorities establish a litigant should not suffer for counsel's mistake. Only the liquidated claim had been reduced to judgment; the fraud/misrepresentation claims required trial, so overall justice favoured allowing both parties to prove their cases.

p. 2

Legal principles established

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  • A litigant ought not to be made to suffer for the mistake of his counsel
  • In setting aside a regular default judgment the court exercises unfettered discretion, considering the reason for default, lapse of time, triable issues, prejudice and the interest of justice

Court orders

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  1. 1.The interlocutory judgement entered against the defendant on 24th December 2018 and the decree arising therefrom are set aside and the defendant is granted leave to defend the suit
  2. 2.The defendant to file and serve Statement of Defence within 14 (fourteen) days from the date of delivery of the ruling
  3. 3.The plaintiff shall have costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 11

Cases cited (6)

  • Mbogoh & Another v. Shah
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Patel v. E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Chemwolo & Another v. Kubende
    [1986] KLR 492
  • CMC Holdings v. Nzioki
    [2004] 1 KLR 173
  • Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others
    [2015] eKLR
Jurisdiction invoked
Inherent discretion under Order 10 rule 11 of the Civil Procedure Rules (as applied in the cited authorities); judgment delivered pursuant to the Chief Justice's Practice Directions on remote delivery

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johnson Gacau Kibera v Lawrence Maina Mwangi [2020] KEELC 2262 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2262/eng@2020-06-04

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