Simon Ndungu & another v Kangathia Kiuna & another [2021] KEELC 513 (KLR)
The bottom line
#A Kenyan land court threw out a defendant's attempt to overturn a 2016 judgment because he waited three years, acted too late, and had no good excuse.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for review under Order 45 Rule 1 and Section 80 of the Civil Procedure Act were met
Review refused; Applicant did not demonstrate due diligence or that the documents could not have been obtained, and the application was made three years after judgment without explanation
The Applicant had to show discovery of new and important matter not within his knowledge, exercise of due diligence, and application without unreasonable delay. The substituted documents could have been easily obtained; he could have sought discovery but sat on his rights. The unexplained three-year delay offended Article 159(2)(b).
Whether the ex-parte judgment should be varied or set aside
Prayer refused; service was proven personal and no valid explanation for non-attendance or triable issues was shown
The discretion under Shah v Mbogo is exercised to avoid injustice from excusable mistake, not to reward delay. The record showed personal service by Affidavits of Service, a memorandum of appearance and defence filed in 2009, and service on 4th June 2013 with no reason for absence. The Applicant did not demonstrate merits of the defence.
Whether the suit should be reopened
Refused; reopening would serve no purpose as the judgment stands and the Applicant was indolent
Having declined to set aside the judgment, reopening would be futile. The Applicant had his chance to defend the suit and thwarted it; equity aids the vigilant, not the indolent.
Legal principles established
#- A party seeking review under Order 45 must demonstrate no appeal preferred, discovery of new and important evidence not available at trial, due diligence, and no unreasonable delay
- Once a judgment is regular, an applicant seeking to set it aside must show that his defence raises triable issues
- Inordinate delay must be sufficiently explained
Court orders
#- 1.The Notice of Motion Application dated 14th June 2019 is dismissed entirely with costs to the Plaintiffs/Respondents
- Jurisdiction invoked
- Order 45 Rule 2(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Ndungu & another v Kangathia Kiuna & another [2021] KEELC 513 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/513/eng@2021-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.