Kangwana v Kenya Agricultural Research Institute (Environment and Land Case 215 of 2013) [2020] KEELC 2732 (KLR)
The bottom line
#A Kenyan court refused to undo a land judgment won by default because the defendant never followed up on its own case for six years.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause was shown for the Defendant's non-attendance at the hearing
No sufficient cause was shown; the Defendant failed to demonstrate that it kept in touch with its advocate or pursued its case.
The court noted the hearing date was taken by consent and the Defendant's legal officer gave no explanation for the Defendant's own failure to follow up on the matter from 2013 to 2019. Applying Ongom v Owota and Savings and Loan Ltd v Susan Wanjiru Muritu, a litigant belongs to itself and must diligently check the progress of its case; the Defendant only acted after learning of the judgment by chance.
Whether the Defendant has a reasonable defence raising triable issues
The defence did not raise triable issues because, while challenging the Plaintiff's title, it did not assert a better title nor file a counterclaim for cancellation.
The Defendant denied the Plaintiff's registered title, alleging irregular and illegal acquisition, and relied on a caution and the Ndung'u Commission report, but it did not claim a better title itself nor counterclaim for cancellation of the Plaintiff's title. The court therefore found it arguable whether the defence raised triable issues, weighing against setting aside.
Whether the Plaintiff would suffer prejudice if the judgment were set aside
The Plaintiff would be prejudiced, having been unable to enjoy the fruits of his judgment for over six months since delivery.
The suit was filed in 2013 and judgment delivered in May 2019; the application was brought more than six months later. The injunctive decree could not be enforced in the interim, and further delay through setting aside would compound the Plaintiff's prejudice.
Legal principles established
#- A litigant is bound by the acts and omissions of its advocate but has a duty to keep in touch with the advocate and pursue its own case; courts must apply this principle carefully to avoid unjust results.
- The discretion to set aside ex-parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the course of justice.
Court orders
#- 1.The Notice of Motion dated 2nd December 2019 seeking to set aside the ex-parte judgment and all consequential orders is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Inherent discretion under the Civil Procedure Rules to set aside ex-parte judgment entered in default of attendance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kangwana v Kenya Agricultural Research Institute (Environment and Land Case 215 of 2013) [2020] KEELC 2732 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2732/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.