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ELCDismissedNot stated in judgment (Nyeri Environment and Land Court)· [2021] KEELC 1217 (KLR)

James Gichuhi Mutero & another v Lolldaiga Country Homes and Golf Resort Ltd and Directors of Lolldaiga Country Homes and Golf Resort Limited; Amos Gichuku Ngonjo & 2 others (Interested parties) [2021] KEELC 1217 (KLR)

Environment and Land Court of Kenya
4 November 2021
JOJ. O. Olola
1,756 words in judgment
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The bottom line

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Kenya's Nyeri Environment and Land Court refused to set aside a judgment against company directors, ruling their late application was a delay tactic, not a genuine mistake.

What this practically means

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Executive summary

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The Interested Parties (Amos Gichuki Ngonjo, Simon Matara Gichuhi and Ramadhan Maulid Juma), directors of Lolldaiga Country Homes and Golf Resort Limited, moved the court by Notice of Motion dated 26th March, 2021 seeking to set aside a notice to show cause, warrants of arrest, and the judgment and decree entered against them, and to have the matter set down for hearing inter partes. They argued they were not parties to the suit since their individual names did not appear, that the decree ran only against the 1st Defendant company, and that no leave had been obtained under Order 22 rule 44(2) to execute against them personally. The Plaintiffs opposed, asserting that the directors were sued as the 2nd Defendants, appeared through counsel, and were jointly and severally liable under the judgment of 24th October, 2019, against which no appeal had been filed. Justice J. O. Olola reviewed the settled discretion under Order 10 rule 11 through Pithon Waweru Maina v Thuka Mugiria and associated authorities, holding that the discretion exists to avoid injustice from accident, inadvertence or excusable mistake, not to aid those who seek to obstruct justice. The court found the Applicants had admitted being the directors sued; their counsel had entered appearance for both Defendants and participated in proceedings before default. The application, brought over a year after judgment, was held to be an attempt to evade, obstruct or delay justice. The Motion was dismissed with costs.

Key legal issues

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01

Whether the Interested Parties were parties to the suit

Holding

They were properly joined as the 2nd Defendants, described as 'The Directors of Lolldaiga Country Homes and Golf Resort Limited', and admitted being those directors

Reasoning

The plaint sued the company and its directors collectively; the Applicants' advocates entered appearance for both Defendants and participated in proceedings. The Applicants admitted in their supporting affidavit that they were the directors sued. Section 3 of the Companies Act, 2015 defines 'director' broadly. Their counsel had addressed the joinder issue in the judgment, and the court declined to revisit it.

p. 3
02

Whether the judgment should be set aside under Order 10 rule 11

Holding

The court declined to set aside the judgment, holding the application to be a delaying tactic brought more than a year after judgment

Reasoning

Applying Pithon Waweru Maina v Thuka Mugiria, the discretion to set aside exists to prevent injustice from accident, inadvertence or excusable mistake, not to reward evasion. The Applicants' counsel was present when the matter was adjourned for settlement and later failed to attend, whereupon the suit proceeded by formal proof. The late application sought to obstruct justice.

p. 3

Legal principles established

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  • The court's discretion to set aside an ex-parte judgment is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the course of justice
  • A party described as a 'director' of a company defendant is properly sued as such, section 3 of the Companies Act, 2015 defining 'director' to include any person occupying the position of director by whatever name called

Court orders

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  1. 1.The Motion dated 26th March, 2021 fails and is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 10 rule 11
  • Civil Procedure Act and Rules 2010Order 22 rule 44(2)
  • Companies Act, 2015Section 3

Cases cited (6)

  • Pithon Waweru Maina –vs- Thuka Mugiria
    (1983) eKLR
  • Kanji Naran –vs- Velji Ramji
    (1954) 21 EACA 20
  • Fort Hall Bakery Supply Company -vs- Fredrick Muigon Wargoe
    (1958) EA 118
  • Patel -vs- EA Cargo Handling Services Limited
    (1974) EA 75, 76, BC
  • Shah -vs- Mbogo
    (1969) EA 116, 123 BC
  • Jesse Kimani -vs- Mc Connel
    (1966) EA 547, 555 F
Jurisdiction invoked
Order 10 rule 11 of the Civil Procedure Rules (court's discretion to set aside ex-parte judgment)

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, "James Gichuhi Mutero & another v Lolldaiga Country Homes and Golf Resort Ltd and Directors of Lolldaiga Country Homes and Golf Resort Limited; Amos Gichuku Ngonjo & 2 others (Interested parties) [2021] KEELC 1217 (KLR)", Case Analysis (2021). Not stated in judgment (Nyeri Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1217/eng@2021-11-04

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