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ELCPartially AllowedNot stated on the face of the ruling (application dated 21/09/2021)· [2021] KEELC 923 (KLR)

Michaela Cherrett v Christine Narumu Lepedo [2021] KEELC 923 (KLR)

Environment and Land Court
18 November 2021
MNMwangi Njoroge
1,866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court set aside a default judgment, allowing a widow to defend her matrimonial property claim, but she paid the application costs.

What this practically means

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Executive summary

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The defendant/applicant, widow of the late Harry Blunt, moved the Environment and Land Court at Nakuru by Notice of Motion dated 21/09/2021 seeking temporary stay of execution, setting aside of the judgment delivered on 18/05/2021, and leave to file her defence and counterclaim. She deponed that she was never directly served but learned of substituted service by newspaper from relatives, instructed Kale, Maina & Bundotich who failed to update her, and that she could not attend court due to hypertension and Covid-19 risk. She asserted matrimonial interest over the suit property and a registered caution, and that the plaintiff, her step-granddaughter, obtained judgment in deceit. The respondent filed no response and no submissions were filed by either party. The court framed a single issue: whether to set aside the judgment and grant leave to defend. Noting that litigants must follow up their cases (Rajesh Rughani; Habo Agencies), the court nonetheless gave the applicant the benefit of doubt since her advocate was absent to explain, citing extenuating factors: the application was filed within four months of judgment and her age and hypertensive condition. Applying Patel v EA Cargo Handling Services, the court found her draft defence - that the suit land was purchased partly with proceeds of her Malindi house and formed matrimonial property - raised triable issues requiring a substantive hearing. Allowing prayers (5) and (6), the court set aside the judgment and consequential orders of 18/05/2021, granted leave to file defence and counterclaim within seven days, and directed a mention on 8 December 2021. Because the plaintiff was faultless, the applicant bore the costs of the application. Dated, signed and delivered at Nakuru via electronic mail on 18 November 2021 by Mwangi Njoroge J.

Key legal issues

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01

Whether the defendant's failure to attend and defend arose from excusable mistake

Holding

The court granted the applicant the benefit of doubt since the advocate blamed was not present to explain, and there were extenuating circumstances including filing within 4 months of judgment

Reasoning

Although authorities stress that litigants must follow up their cases, the advocate blamed was absent to respond to the allegations. The applicant filed the application within four months of judgment and attached medical evidence showing hypertension at age 60. The court found sufficient cause and the benefit of doubt weighed in favour of setting aside, prioritising substantive justice.

p. 2
02

Whether the draft defence raises triable issues

Holding

Yes - the claim that the suit land was purchased partly with proceeds of sale of the applicant's Malindi house and formed part of her matrimonial property raises triable issues for trial

Reasoning

The applicant exhibited a marriage certificate and asserted matrimonial interest over Nakuru Municipality Block No. 17/291, on which she had registered a caution. The court held these allegations could not be ignored and required a substantive hearing to ascertain the truth, satisfying the Patel triable-issue threshold.

p. 3

Legal principles established

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  • A litigant has an obligation to follow up on the progress and outcome of a suit even when represented by counsel
  • A regular judgment will not usually be set aside unless there is a defence on the merits raising a triable issue
  • The right to be heard is a protected right and the court's discretion should be exercised with proportionality

Court orders

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  1. 1.Judgment and all consequential orders delivered on 18/05/2021 set aside
  2. 2.Defendant granted leave to file defence and counterclaim, to be filed and served within 7 days
  3. 3.Costs of the application borne by the applicant
  4. 4.Suit to be mentioned on 8th December 2021 for directions as to hearing

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A and 63(c) and (e)
  • Civil Procedure Rules 2010Order 10 rule 11; Order 22 Rule 52; Order 45; Order 51 rules 1 and 3

Cases cited (8)

  • Rajesh Rughani –v- Fifty Investment Ltd. & Another
    (2005) eKLR
  • Habo Agencies Limited –v- Wilfred Odhiambo Musingo
    (2015) eKLR
  • Phillip Chemwolo & Another v Augustine Kubende
    [1986] eKLR
  • Belinda Murai & Others -vs- Amos Wainaina
    [1981] eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Sammy Maina Versus Stephen Muriuki
    Nairobi Civil Case No. 1079 of 1980
  • Shabir Din v Ram Parkash Anand
    (1955) 22 EACA 48
  • Richard Ncharpi Leiyagu vs IEBC & 2 others
    2013 eKLR
Jurisdiction invoked
Sections 3, 3A and 63(c) and (e) of the Civil Procedure Act Cap 21 and Order 10 rule 11, Order 22 Rule 52, Order 45 and Order 51 rules 1 and 3 of the Civil Procedure Rules 2010

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, "Michaela Cherrett v Christine Narumu Lepedo [2021] KEELC 923 (KLR)", Case Analysis (2021). Not stated on the face of the ruling (application dated 21/09/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/923/eng@2021-11-19

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