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ELCDismissedNot stated in the judgment (Environment and Land Court, Thika)· [2021] KEELC 1245 (KLR)

Paul Ngigi Njoroge v Edward Peter Waweru Njoroge [2021] KEELC 1245 (KLR)

Environment and Land Court of Kenya
1 November 2021
JKJ. G. Kemei
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika refused to reopen a land judgment, ruling that a litigant who skips his own hearing and sells the disputed land cannot get a second chance.

What this practically means

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Executive summary

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The Defendant/Applicant moved the Environment and Land Court at Thika by a notice of application dated 26/11/2020 seeking to set aside the judgment entered on 15/6/2020 in the Plaintiff's land suit, together with all consequential orders, and for leave to defend the suit so it could be heard on merits. He argued that his former advocates, Nyantika & Co Advocates and Ngugi Mwaniki & Co Advocates, deliberately kept him in the dark about the hearing and judgment dates, and that the suit land had been gifted to him by his late brother and was not family land. The Plaintiff/Respondent opposed, terming the application an abuse of process and asserting that the Applicant had transferred the suit land to Josephine Njeri Waweru during the pendency of the suit. The court framed a single issue: whether the application had merit. Applying the discretionary principles in Esther Wamaitha Njihia v Safaricom Ltd (citing Patel v E.A. Cargo Handling, Shah v Mbogo and Sebei District Administration v Gasyali), the court found that the defence had been filed by Ngugi & Co Advocates, that the hearing had been fixed by consent of counsel, and that the Applicant himself, not merely his advocate, had a duty to attend court on the hearing day but was absent, without any affidavit from his advocates supporting his allegations. The court also noted the record showed the Applicant had transferred the suit land to a third party pending the suit. The application was found unmerited and disallowed, with costs to the Applicant.

Key legal issues

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Whether the court should exercise its discretion to set aside the judgment and allow the Defendant to defend the suit

Holding

The application was dismissed; the Applicant failed to demonstrate excusable mistake or that his advocates deliberately deprived him of a hearing

Reasoning

The court considered the principles in Esther Wamaitha Njihia v Safaricom Ltd, drawing on Patel v E.A. Cargo Handling Services Ltd and Shah v Mbogo, that the discretion is free and aimed at doing justice but is not designed to assist a party who deliberately sought to obstruct justice. The record showed the Applicant's counsel fixed the hearing by consent, obtained adjournments, and was present on the hearing day, while the Applicant himself was absent. No affidavit from his advocates supported the claim of being kept in the dark. Further, the Applicant had transferred the suit land to a third party during the pendency of the suit, divesting himself of interests in the subject matter.

p. 3

Legal principles established

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  • The power to set aside judgment is discretionary, exercised to do justice and avoid injustice from accidental or excusable mistake, but not to assist a party who deliberately obstructs or delays justice; a litigant has a personal duty to attend court for the hearing of his case

Court orders

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  1. 1.The application dated 26/11/2020 is disallowed as unmerited
  2. 2.The costs of the application shall be borne by the Applicant

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3

Cases cited (4)

  • Esther Wamaitha Njihia & 2 others vs. Safaricom Ltd
    [2014]
  • Patel vs E.A. Cargo Handling Services Ltd
  • Shah vs. Mbogo
  • Sebei District Administration vs Gasyali
Jurisdiction invoked
Inherent and discretionary powers to set aside judgment under the Civil Procedure Act, including sections 1A and 3 (overriding objectives)

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, "Paul Ngigi Njoroge v Edward Peter Waweru Njoroge [2021] KEELC 1245 (KLR)", Case Analysis (2021). Not stated in the judgment (Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1245/eng@2021-11-01

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