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ELCDismissed· [2021] KEELC 610 (KLR)

Adam Ambani Mulunda v Richard Mapesa Matuli [2021] KEELC 610 (KLR)

Environment and Land Court (High Court), Kakamega
30 November 2021
1,802 words in judgment
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The bottom line

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A Kakamega court refused to cancel eviction orders, ruling that a lawyer's travel problems and factual claims about a practising certificate were not good reasons to delay enforcing a judgment.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo J of the High Court at Kakamega, delivered on 30th November 2021, disposed of the defendant's Notice of Motion dated 4th October 2021 seeking to set aside enforcement orders issued earlier that day and to have a preliminary objection deemed filed and heard. The background: judgment of 19th September 2012 (Chitembwe J) found the defendant held part of the land in trust for the plaintiff and the Mulanda Lukoko family and that the plaintiff had acquired 6.8 hectares of plot S/WANGA/MUSANDA/46 by adverse possession, ordering sub-division of S/WANGA/MUSANDA/953. A ruling of 28th January 2015 ordered a survey; a further ruling of 18th February 2020 (N. A. Matheka J) varied the relief to 6.6 hectares and authorised execution of transfer documents and eviction. On 4th October 2021 the court granted the plaintiff's application to evict the defendant, in the defendant's absence. The defendant explained his counsel's absence by car breakdown en route from Kisumu. The court applied the setting-aside principles in Mbogoh & Another v. Shah as reiterated in James Kanyiita Nderitu v Ghikas, noting the hearing had been fixed by consent on 13th July 2021, the defendant had filed nothing by the hearing time, and the travel excuse was unconvincing. The intended preliminary objection - that the plaintiff's advocate lacked a 2021 practising certificate - was held to be a question of fact, not a pure point of law per Mukisa Biscuit. Finding no triable issue and prejudice to the decree holder, the court dismissed the application with no order as to costs.

Key legal issues

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01

Whether the orders of 4th October 2021 ought to be set aside

Holding

The application failed. The hearing date was fixed by consent on 13th July 2021; counsel's travel problems did not excuse non-appearance, and the applicant had filed nothing by the morning of the hearing.

Reasoning

The court applied the Mbogoh v Shah and Kanyiita Nderitu principles: reason for absence, delay, triable issues, prejudice and interest of justice. Counsel knew of the date by consent, had filed no response to the plaintiff's application by 9.00am on the hearing day, and gave no details of any hold-brief instructions. The 4th October orders were enforcement orders of an unchallenged judgment, and setting them aside would prejudice the decree holder.

p. 2
02

Whether the intended preliminary objection raised a triable/pure issue of law

Holding

No - the alleged absence of a practising certificate for 2021 is a question of fact requiring evidence, not a pure point of law.

Reasoning

Citing Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held that a preliminary objection must rest on a pure point of law conceded on the pleadings without ascertainment of fact. Alleged non-renewal of a practising certificate would require evidence to establish and therefore could not ground a valid preliminary objection, so no triable issue was disclosed.

p. 3
03

Whether setting aside would serve the interest of justice

Holding

No. The matter is concluded by an unchallenged judgment on the merits, and enforcement orders should stand.

Reasoning

The court observed that judgment was validly entered after both parties were heard on the merits, it has never been set aside, and subsequent orders including those of 4th October 2021 were directed at enforcing it. Granting the defendant's application would occasion prejudice to the plaintiff as decree holder and would not be in the interest of justice, given the desirability of ending litigation.

p. 3

Legal principles established

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  • A valid preliminary objection must raise a pure point of law; factual questions requiring evidence cannot sustain one
  • A court has wide discretion to set aside orders made in default, considering reason for default, length of delay, triable issues, prejudice and the interest of justice
  • Litigation must come to an end and a validly obtained judgment should be enforced

Court orders

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  1. 1.Notice of Motion dated 4th October 2021 dismissed
  2. 2.No order as to costs

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
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Inherent and supervisory jurisdiction of the High Court over its own proceedings (application to set aside orders made in absence; Civil Procedure Rules, Order 10 rule 11 principles applied by analogy)

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, "Adam Ambani Mulunda v Richard Mapesa Matuli [2021] KEELC 610 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/610/eng@2021-11-30

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