Keziah Mugure Njuguna v Naomi Wambui Gachicha & Githunguri Constituency Ranching Company Limited [2021] KEELC 1945 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a judgment entered against a woman whose lawyer was never instructed by her, ordering a fresh hearing.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause for setting aside ex parte judgment
The Appellant established sufficient cause because she never instructed P.K Njoroge & Company Advocates, so the hearing notice served on that firm was not effective service on her
The court re-assessed the record on a first appeal and found the Appellant had appeared in person, entered appearance and filed a defence in 2010, and the matter was stood over generally due to tribunal proceedings. It found it plausible she did not follow up the case. Service of the hearing notice on a firm she never instructed was not service on her, so her non-attendance was excusable.
Triable issues in the draft defence
The Appellant's defence of 24th September 2010 raised triable issues, notably ownership of the suit property, warranting a hearing on the merits
Applying CMC Holdings Ltd v James Mumo Nzioki, the court held that setting aside ex parte judgment requires consideration of both reasons for non-attendance and whether a reasonable defence exists. The defence disputed the 1st Respondent's ownership of the suit property, issues requiring determination in the interest of justice.
Recourse against unauthorised advocates
The trial court erred in directing the Appellant to the Advocates Act remedy, since one who never instructed a firm has no recourse against it
Relying on Pravinchandra Jamnadas Kakad v Lucas Oluoch Mumia, the court distinguished professional negligence from the situation where a party never gave instructions at all. Without instructions, professional negligence cannot arise, so the trial court's reasoning was a misdirection justifying interference with its discretion.
First appeal duty
On a first appeal the court must analyse and re-assess the evidence and reach its own independent decision
Citing Selle v Associated Motor Boat Co., the court noted its duty as a first appellate court to reconsider the evidence and draw its own conclusions while making due allowance for the fact that it did not see or hear the witnesses. It then re-evaluated the lower court record before interfering with the magistrate's discretion.
Legal principles established
#- An advocate without instructions has no authority to act for or receive service on behalf of a party
- A party who did not instruct the firm on record cannot be sent to a professional-negligence remedy against that firm
- An appellate court will interfere with the exercise of discretion by a lower court where the decision is plainly wrong or rests on a misdirection
Court orders
#- 1.The Appeal is allowed entirely
- 2.The Ruling and order of the trial Court dated 23rd May 2019 is set aside
- 3.The Application dated 18th March 2019 is allowed (granting leave for Mbai Waweru Advocates to come on record, setting aside the proceedings and judgment and consequential orders, with the suit to be heard afresh)
- 4.Each party to bear its own costs on this Appeal
- On appeal from
- Chief Magistrate's Court, Thika
- Thika CMCC 952 of 2010
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keziah Mugure Njuguna v Naomi Wambui Gachicha & Githunguri Constituency Ranching Company Limited [2021] KEELC 1945 (KLR)", Case Analysis (2021). Appeal against ruling in Thika CMCC 952 of 2010 (Memorandum of Appeal dated 14th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1945/eng@2021-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.