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ELCDismissedMachakos ELC Case (Plaint dated 9th April, 2014)· [2020] KEELC 3311 (KLR)

Rajnikant Harjivandas Sangrajka & another v Kiatu & Allied Products Limited & another [2020] KEELC 3311 (KLR)

Environment and Land Court
6 March 2020
1,856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to rescue a land defendant who ignored deadlines and blamed its lawyers, letting judgment proceed against it.

What this practically means

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Executive summary

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This was a ruling on the 1st Defendant's Notice of Motion dated 10th December, 2019 seeking to arrest judgment in the main land suit, set aside the ex-parte proceedings of 9th October, 2019, and have its Defence of 13th April, 2015 deemed duly filed. The Plaintiffs opposed, asserting they were bona fide purchasers of L.R. No. 337/660, Athi River, that the 1st Defendant had been granted leave to file a Defence on 24th November, 2017 but never did, and that the draft Defence raised no triable issues. Angote J. traced the 1st Defendant's history of engaging and dismissing four successive firms of advocates, concluding it had not been keen in defending the suit. The court held that no plausible reason had been given for setting aside the proceedings, that blaming former advocates for a breakdown in communication was untenable, and applied Ketteman v Hansel Properties on the consequences of advocate negligence. The court further held that it could not revisit the question of triable issues already decided in the Ruling of 24th November, 2017, and rejected the argument that the absence of interlocutory judgment against the 2nd Defendant made the suit unready for hearing, since interlocutory judgment is unavailable in claims for recovery of land. The application was dismissed with costs and judgment in the main suit was to be delivered on 6th March, 2020.

Key legal issues

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01

Whether an ex-parte hearing should be set aside where a defendant blames a breakdown of communication with its advocates

Holding

The application was dismissed; a defendant given an opportunity to file a Defence who fails to follow up cannot have proceedings set aside

Reasoning

The court traced a chronology of the 1st Defendant engaging and firing successive firms of advocates since 2015. Having been allowed to file a Defence out of time in 2017 and never doing so, the 1st Defendant failed to demonstrate a plausible reason for setting aside the ex-parte proceedings. Reliance on advocate negligence was rejected per Said Sweilem and Ketteman.

p. 2
02

Whether the absence of interlocutory judgment against the 2nd Defendant meant the suit was not ready for hearing

Holding

The contention was rejected as erroneous

Reasoning

The court held that interlocutory judgment under Order 10 Rules 4 and 6 may only be entered for liquidated claims or detention of goods, not for recovery of land. Therefore the 2nd Defendant's failure to enter appearance or file a Defence did not prevent the suit from proceeding to hearing.

p. 3
03

Whether the court could reconsider whether the draft Defence raises triable issues

Holding

The court could not revisit that issue as it had already been determined in the Ruling of 24th November, 2017

Reasoning

Gitumbi J. had, in the Ruling of 24th November 2017, considered the 1st Defendant's proposed Defence and allowed it to be filed out of time. The Defence was never filed. The issue of triable issues was thus functus and the court declined to revisit it.

Legal principles established

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  • Mistakes of a litigant's appointed advocates cannot be visited upon the other party or excuse non-compliance with court orders
  • Interlocutory judgment cannot be entered in suits for recovery of land, only in liquidated claims or detention of goods

Court orders

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  1. 1.Dismissal of the 1st Defendant's Notice of Motion dated 10th December, 2019
  2. 2.Costs of the application to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 4 and 6
  • Law of Succession ActSection 45

Cases cited (2)

  • Said Sweilem Gheithan Saanun vs. Commissioner of Lands and Others
    (2015) eKLR
  • Ketteman vs. Hansel Properties Limited
    (1988) 4 ALL E.R 769
Jurisdiction invoked
not stated in the judgment

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, "Rajnikant Harjivandas Sangrajka & another v Kiatu & Allied Products Limited & another [2020] KEELC 3311 (KLR)", Case Analysis (2020). Machakos ELC Case (Plaint dated 9th April, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3311/eng@2020-03-06

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