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ELCPartially AllowedNot stated in the judgment as provided· [2021] KEELC 1943 (KLR)

Nelly Wanjiru Njenga v Robinson Maina & 3 others [2021] KEELC 1943 (KLR)

Environment and Land Court
24 September 2021
3,696 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Thika court allowed a landowner to evict her son and other defendants, ruling that without a draft defence, an ex parte judgment stands.

What this practically means

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Executive summary

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Two interlocutory applications arising after a formal-proof judgment of 27th February 2020 in a land trespass suit over parcel Kabete/Kibichiko/3736 were determined by the Environment and Land Court at Thika (L. Gacheru, J). The 4th Defendant, James Mungai, son of the Plaintiff, sought leave for new advocates and review or setting aside of the judgment and decree on grounds of non-service and that a prior suit, ELC 817 of 2017 (Thika), over the same subject matter was pending, rendering the suit sub judice. The Plaintiff opposed, asserting proper service effected by a process server whom she personally accompanied, and contended the Defendant filed no draft defence. The Plaintiff separately applied for leave for incoming advocates M.K Mwangi & Co., execution of the decree by eviction, and police assistance. The court allowed the change of advocates upon a consent letter, applying Order 9 Rule 9 CPR and its protective rationale. On the setting-aside application, the court held the Affidavit of Service complied with Order 5 Rule 15(1), was unimpugned, and the judgment was therefore regular; the prior suit concerned a different parcel (Kabete/Kibichiko/1158) so sub judice failed; and the absence of a draft defence precluded any finding of triable issues. The 4th Defendant's application was dismissed. The Plaintiff's application was allowed entirely, permitting execution by eviction with police assistance, with costs to the Plaintiff.

Key legal issues

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01

Whether leave should be granted for a change of advocates after judgment

Holding

Leave granted; the outgoing advocates consented and no reason was advanced to refuse the change

Reasoning

Order 9 Rule 9 CPR requires court leave or consent for a change of advocate after judgment, to protect advocates from mischievous clients who sack them post-judgment leaving fees unpaid. Here a consent letter dated 1st October 2020 was produced; the previous advocates raised no objection, and the court cannot compel a party to retain a particular advocate absent reason.

p. 3
02

Whether the ex parte judgment of 27th February 2020 should be set aside or reviewed

Holding

Refused; service was regular, the suit was not shown to be sub judice, and no draft defence was annexed

Reasoning

The Affidavit of Service complied with Order 5 Rule 15(1) and was never impugned nor was the process server cross-examined pursued. The pleadings in ELC 817 of 2017 concerned L.R Kabete/Kibichiko/1158, a different parcel, so sub judice was not established. Without a draft defence the court could not assess triable issues, so the discretion to set aside was not met.

p. 4
03

Whether the Plaintiff's application for execution by eviction with police assistance should be allowed

Holding

Allowed entirely; there being a regular judgment, eviction was warranted

Reasoning

The defendants did not enter appearance and had not appealed; they continued in occupation. Having upheld the regularity of the judgment, the court found no basis to disallow execution by eviction and granted police assistance to ensure order, peace and security given allegations of squabbling between the parties.

p. 5

Legal principles established

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  • Where a judgment sought to be set aside is regular (proper service effected), the discretion is exercised judicially considering whether the defendant has a defence on merit or other good reason; failure to annex a draft defence defeats the application
  • An unimpugned affidavit of service compliant with Order 5 Rule 15(1) establishes regular service and a regular judgment

Court orders

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  1. 1.Leave granted to the Law Firm of M.K Mwangi & Company Advocates to come on record for the Plaintiff
  2. 2.The 4th Defendant's Notice of Motion dated 3rd July 2020 dismissed, save for leave for his advocates to come on record
  3. 3.The Plaintiff's Notice of Motion dated 1st October 2020 allowed entirely, including execution of the Decree by way of eviction of the Defendants from parcel Kabete/Kibichiko/3736 and police assistance from the OCS Kingeero Police Station
  4. 4.Costs of the Plaintiff's Application to the Plaintiff/Applicant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Act and Civil Procedure Rules, 2010 (interlocutory applications after 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, "Nelly Wanjiru Njenga v Robinson Maina & 3 others [2021] KEELC 1943 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1943/eng@2021-09-24

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