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ELCDismissedNot stated in judgment· [2021] KEELC 681 (KLR)

Vijay Morjaria v Robert Obwocha & 4 others [2021] KEELC 681 (KLR)

Environment and Land Court
16 November 2021
ANA. Nyukuri
1,672 words in judgment
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The bottom line

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A Kenyan court dismissed a land party's delay application, confirming that blaming your advocate won't excuse months of inaction when you've done nothing to advance your own case.

What this practically means

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Executive summary

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By Notice of Motion dated 18th October 2021, the 1st Defendant in a land dispute sought a stay of the ruling of an application dated 15th July 2021, scheduled for ruling on 28th October 2021, so as to allow him to file a response to that application. He blamed his erstwhile advocates, Ongegu & Ongegu Associates, for failing to file a response despite instructions, and asserted that he had allotment letters from 1993 and had paid premiums of Kshs. 179,800 in 2017. The Plaintiff opposed, showing the 1st Defendant was served in July 2021, was represented on 27th July 2021 when the court granted him 14 days to respond, and on 4th October 2021 holding counsel indicated instructions to allow prayer 4 of the earlier application. The Plaintiff argued the party is bound by his advocate's acts, there was non-compliance with Order 7 rule 1, and the draft response raised no triable issue. The court, exercising its discretion under the overriding objective (Sections 1A and 1B of the Civil Procedure Act) and guided by Salat, Madison Insurance and Muchanga Investments, held that the Applicant had not explained the nearly three-month delay nor substantiated his inquiries to his advocate, and had filed no defence, witness statements or documents. The right to be heard does not extend to squandering judicial time. The application was dismissed with costs.

Key legal issues

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01

Whether the Applicant was entitled to an indulgence (stay of the ruling of the application dated 15th July 2021) so as to file a response

Holding

No. The Applicant gave no satisfactory explanation for the delay between 21st July 2021 and 18th October 2021 and produced no material proving he made inquiries of his advocate; his conduct contravened the overriding objective, so the discretion was exercised against him.

Reasoning

The court noted the Applicant was granted 14 days on 27th July 2021 to file a response but failed. He blamed his advocate but did not explain the three-month delay or show he instructed a new advocate promptly. He had also filed no defence, witness statements or bundle of documents, showing no genuine intention to contest the suit. The day-in-court principle does not excuse wasting judicial resources.

p. 2

Legal principles established

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  • A party's right to have his day in court is limited by the overriding objective and should not be exercised to squander judicial time
  • The overriding objective confers considerable latitude on courts in exercising discretion and does not uproot established principles but emboldens the court to be guided by a broad sense of justice and fairness

Court orders

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  1. 1.The 1st Defendant's application dated 18/10/2021 dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 63
  • Civil Procedure RulesOrder 51 Rules 1 and 4; Order 7 rule 1
  • Environment and Land Court ActSection 19(1)

Cases cited (6)

  • Madison Insurance Company Limited vs. David Wambua, Jackson Mulinge Maingi & Another (Interested Party)
    [2021] eKLR
  • Swain vs. Hillman
    [2000] 1 All ER 91
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & Others
    [2013] eKLR
  • City Chemist (NRB) Mohamed Kasabuli suing for and on behalf of the estate of Halima Wamukoya Kasabuli versus Orient Commercial Bank Limited
    Civil Application Number Nai 302 of 2009 (UR 199/2008)
  • Kariuki Network Limited & Another versus Daly & Figgs Advocates
    Civil Application No. Nai 293 of 2009
  • Muchanga Investments Ltd vs. Safaris Unlimited (Africa) Ltd & 2 Others
    (2009) eKLR
Jurisdiction invoked
Sections 1, 1A, 1B, 3, 3A and 63 of the Civil Procedure Act; Order 51 Rules 1 and 4 of the Civil Procedure Rules; Section 19(1) of the Environment and Land Court Act

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, "Vijay Morjaria v Robert Obwocha & 4 others [2021] KEELC 681 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/681/eng@2021-11-16

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