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ELCDismissedNot stated in the judgment· [2020] KEELC 2731 (KLR)

Clemensia Nyanchoka Kinaro v Joyce Nyansiaboka Onchomba [2020] KEELC 2731 (KLR)

Environment and Land Court (or High Court) of Kenya
23 April 2020
JOJ. M. Onyango
2,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen a judgment where the applicant stayed silent for years, confirming that your lawyer's inaction is your problem.

What this practically means

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Executive summary

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The Defendant/Applicant, Joyce Nyansiboka Onchomba, brought a notice of motion dated 4th November 2019 under Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B and 63(e) of the Civil Procedure Act seeking to set aside the proceedings of 19th September 2013 culminating in the ex-parte judgment of 29th May 2014 and the subsequent decree ordering her to vacate the suit property, and for the suit to be heard afresh de novo. She argued the hearing date was never communicated to her by her then advocates, who failed to attend after an adjournment application was dismissed, and that she only learned of the judgment in 2017 upon arrest in execution of the decree. The Respondent opposed, contending the application was an afterthought, that the hearing date had been fixed by consent, that over five years of unexplained delay had elapsed, and that litigation must come to an end, relying on Shah v Mbogo and Ongom v Owota. J. M. Onyango J framed a sole issue: whether the ex-parte judgment of 29th May 2014 should be set aside. The court held that the date was fixed by consent, that the Applicant gave no sufficient cause for non-attendance, that she was indifferent to the proceedings for about three years, and that where an advocate is guilty of inaction the litigant bears the consequences. Applying Shah v Mbogo, the court found the discretion does not assist those who delay the course of justice and dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether the ex-parte judgment of 29th May 2014 should be set aside under Order 12 Rule 7 of the Civil Procedure Rules

Holding

The application was dismissed; the Applicant failed to demonstrate sufficient cause for her non-attendance or excusable mistake

Reasoning

The hearing date had been fixed by consent of the advocates. Counsel's adjournment application was dismissed and counsel failed to attend or inform the client. The Applicant, having filed a defence and counterclaim, took no steps to follow the proceedings for about three years after judgment until execution. Under Shah v Mbogo the discretion does not assist those who deliberately obstruct or delay justice, and advocate inaction is borne by the litigant.

p. 4
02

Whether the principles in Maina v Mugiria and Shah v Mbogo favour setting aside

Holding

The principles were restated but applied against the Applicant on the facts

Reasoning

While the objective of the court is to do justice, such justice must cut both ways. The Applicant was indifferent to the suit despite being a party who had filed a defence and counterclaim, and did not explain over five years of inaction since judgment.

p. 4

Legal principles established

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  • The court's discretion to set aside an ex-parte judgment is intended to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a person who deliberately obstructs or delays the course of justice
  • Where an advocate is guilty of inaction as the litigant's agent, the litigant bears the consequences

Court orders

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  1. 1.The application dated 4th November 2019 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)

Cases cited (11)

  • Maina vs Mugiria [1983]
  • Shah v Mbogo [1967] EA 116
    1967 EA 116
  • Shabir Din v Ram Parkash Anand (1955) 22 EACA 48
    (1955) 22 EACA 48
  • Mbogo v Shah [1968] EA 93
    1968 EA 93
  • Kanji Naran v Velji Ramji [1954] 21 EACA 20
    [1954] 21 EACA 20
  • Smith v Middleton [1972] SC 30
    [1972] SC 30
  • Ongom vs Owota
  • Sebei District Administration -v- Gasyali
  • The Council, Jomo Kenyatta University of Agriculture and Technology vs Joseph Mutuura Mbeera & 3 Others [2015] eKLR
    [2015] eKLR
  • Rajesh Rughani – Vs- Fifty Investment Ltd. & Another (2005) eKLR
    (2005) eKLR
  • Bains Construction Co. Ltd. -Vs- John Mzare Ogowe 2011 eKLR
    2011 eKLR
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure 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, "Clemensia Nyanchoka Kinaro v Joyce Nyansiaboka Onchomba [2020] KEELC 2731 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2731/eng@2020-04-23

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