Josphat Kazungu Ziro (Suing through Christine Ziro Mwatela Vide Power of Attorney) v Johnson Kaviha Thoya; Housing Finance Company of Kenya Limited (Third Party) [2021] KEELC 652 (KLR)
The bottom line
#A Kenyan court refused to reopen a 14-year land case because the defendant waited over a year with no explanation and simply blamed his former lawyers.
What this practically means
#Executive summary
#Key legal issues
#Justifiable cause for non-attendance at defence hearing
No sufficient cause was shown; the matter had come up for defence hearing on multiple occasions and no reason was given for the absence of both defendant and counsel on 5th October 2020.
The record showed the matter had been listed for defence hearing seven times between 2017 and 2020 and was adjourned each time. On 5th October 2020 it proceeded in the absence of both defendant and counsel, and no explanation was offered. Blaming previous advocates was insufficient, as parties must follow up their own cases.
Inordinate delay in filing the application
There was inordinate and unexplained delay of over a year between closure of the defence case and the application, which was fatal.
The defence case closed on 5th October/November 2020, yet no steps were taken for over one year and the application gave no explanation for the delay. Citing Jaber Mohsen Ali v Priscillah Boit, the court held that reasonableness of delay depends on circumstances and even one day may be unreasonable. A 14-year-old matter had to end.
Whether the defence raises triable issues warranting setting aside
The court found the application lacked merit overall and did not find a defence on the merits sufficient to displace the regular judgment.
Relying on Kimani v MC Conmell, where a regular judgment is entered the court will not set it aside unless satisfied the defence raises triable issues. The respondent argued the defence raised no triable issues since the plaintiff purchased the property at auction and never offered a mortgage facility. The court concluded the application lacked merit and dismissed it.
Legal principles established
#- A party cannot simply blame advocates on record; litigants must follow up their cases even when represented.
- Where a regular judgment has been entered, the court will not usually set it aside unless satisfied the defence raises triable issues.
- Unreasonableness of delay depends on the circumstances of each case; even one day may be unreasonable.
Court orders
#- 1.The application dated (seeking leave for M/s Lewa & Associates to come on record, stay of execution, setting aside of the judgment of 30th July 2021 and reopening of the defence case) is dismissed
- Jurisdiction invoked
- Inherent discretion of the court to set aside judgment; constitutional right to be heard
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Kazungu Ziro (Suing through Christine Ziro Mwatela Vide Power of Attorney) v Johnson Kaviha Thoya; Housing Finance Company of Kenya Limited (Third Party) [2021] KEELC 652 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/652/eng@2021-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.