Adam Ambani Mulunda v Richard Mapesa Matuli [2021] KEELC 610 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the orders of 4th October 2021 ought to be set aside
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.
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.
Whether the intended preliminary objection raised a triable/pure issue of law
No - the alleged absence of a practising certificate for 2021 is a question of fact requiring evidence, not a pure point of law.
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.
Whether setting aside would serve the interest of justice
No. The matter is concluded by an unchallenged judgment on the merits, and enforcement orders should stand.
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.
Legal principles established
#- 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
#- 1.Notice of Motion dated 4th October 2021 dismissed
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.