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ELCPartially AllowedNot stated in the judgment as provided· [2021] KEELC 2674 (KLR)

Kiambu Murutani Company Limited v Michael Njuguna, Equity Bank Limited & another [2021] KEELC 2674 (KLR)

Environment and Land Court

24 June 2021

LKL. Komingoi

1,179 words in judgment

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The bottom line

Kenya's Environment and Land Court refused to undo a default judgment, clearing the way for a lawful eviction of the defendant and his tenants.

What this practically means

Executive summary

The court, L. Komingoi J, determined two competing applications arising from a judgment delivered on 10th December 2020 in a land dispute over Title Number Kiambu Municipality Block 1/57. The 1st defendant, Michael Njuguna, applied under Order 12 rules 2 and 7 of the Civil Procedure Rules to set aside the judgment and for leave to cross-examine the plaintiff's witnesses, alleging his previous advocates mismanaged the case. The plaintiff sought an Order 22 rule 29 order authorizing appointment of a licensed auctioneer to evict the 1st defendant and others claiming through him, with police security. Examining its own record, the court found that on 3rd February 2020 a consent had been recorded in the presence of counsel for the 1st defendant, including leave to cross-examine and to amend pleadings, and the hearing date of 13th July 2020 was taken in the presence of both counsel. Neither the defendant nor his counsel attended on the hearing date and no explanation was offered; the matter proceeded ex parte, the plaintiff's case was closed and judgment entered. The court held it was untrue that the defendant was unaware of the proceedings and found no plausible reason to exercise its discretion in his favour, dismissing his application with costs. Allowing the plaintiff's application, the court authorized eviction from the suit property, ordered the OCS Kiambu Police Station to provide security, and condemned the 1st defendant to the plaintiff's costs and the auctioneer's costs. The court noted a pending, unwithdrawn Notice of Appeal but did not stay execution.

Key legal issues

Whether the defendant's application to set aside the ex parte judgment should be allowed

Holding

The application was dismissed; the court record showed the defendant and his counsel were aware of the proceedings and no plausible reason justified exercise of the discretion in his favour

Reasoning

The court reviewed its own record: a consent was recorded on 3rd February 2020 in the presence of counsel for the 1st defendant, and the matter was fixed for hearing on 13th July 2020 in the presence of both counsel. On that date neither the defendant nor his counsel appeared and no explanation was given. The claim of mismanagement by previous advocates was therefore not supported by the record.

p. 3

Whether the plaintiff's application for eviction should be granted

Holding

Allowed; a valid judgment existed, had not been stayed or set aside, and the plaintiff was authorized to evict the 1st defendant and those claiming through him, with police security

Reasoning

The court noted there was a valid judgment of 10th December 2020 that had neither been stayed nor set aside. Execution in accordance with the judgment could therefore proceed, and the court authorized appointment of a licensed auctioneer, ordered OCS Kiambu Police Station to provide security, and condemned the 1st defendant to the plaintiff's and auctioneer's costs.

p. 3

Legal principles established

Where a hearing date is taken in the presence of counsel and the party or counsel fails to attend without explanation, the court may properly proceed and a party cannot later claim ignorance of the proceedings
Under Order 12 rule 7 the court may set aside or vary a judgment entered under the Order only upon such terms as may be just, and the applicant must show sufficient cause

Court orders

1.The Notice of Motion dated 2nd February 2021 is dismissed with costs to the plaintiff/respondent
2.The plaintiff/applicant is authorized to appoint a licenced Auctioneer to evict and remove the 1st defendant, his tenants and their families or any person claiming through them from Title Number Kiambu Municipality/Block 1/57
3.The OCS Kiambu Police Station is ordered to provide security during the eviction exercise
4.The 1st defendant to bear the plaintiff's costs and the Auctioneer's costs during the eviction exercise

Authorities

Legislation

Civil Procedure Actsections 1A, 1B, 3A, 63(e)
Civil Procedure Rules, 2010Order 12 rules 2 and 7; Order 22 rule 29; Order 51 rule 1

Jurisdiction invoked: Order 12 rules 2 and 7, Order 22 rule 29, Order 51 rule 1 of the Civil Procedure Rules, 2010; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kiambu Murutani Company Limited v Michael Njuguna, Equity Bank Limited & another [2021] KEELC 2674 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2674/eng@2021-06-24

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