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ELCDismissedNot stated in judgment· [2021] KEELC 2681 (KLR)

Robert K. Muthamia v Catherine Kajau Kirema [2021] KEELC 2681 (KLR)

Environment and Land Court
7 July 2021
LMLUCY N. MBUGUA
1,411 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru against a magistrates' court judgment of 2/7/2020, in which siblings disputed 0.41 HA out of L.R No. Abogeta/L-Kiungone/1084. The respondent had sued the appellant, alleging that she funded a succession cause to the tune of Kshs. 105,000 on the understanding that the appellant would hold 0.41 HA of the resulting land in trust for her and transfer it to her; the appellant instead claimed he only owed her Kshs. 105,000. The suit proceeded to hearing and judgment in the appellant's absence; his application of 15/10/2019 to reopen the case and recall the respondent for cross-examination was dismissed by a ruling of 21/5/2020, and no appeal was lodged against that ruling. On appeal, the appellant raised four grounds, essentially attacking the refusal to reopen the case and alleging an unfair hearing, relying on Section 146(4) of the Evidence Act, Order 18 Rule 10 of the Civil Procedure Rules and Articles 50(1) and 159(2)(d) of the Constitution. The respondent argued estoppel and the indolence of the appellant. The court agreed that the appellant was estopped from challenging the unappealed ruling, applied the jurisprudence on setting aside ex-parte judgments (Waweru v Ndiga; CMC Holdings v Nzioki; Rayat Trading), and noted that the appellant's advocates had been on record for almost a year before the hearing. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Estoppel from attacking an unappealed interlocutory ruling

Holding

The appellant, having not appealed the ruling of 21/5/2020 dismissing his application to reopen the case, was estopped from raising the same issues in the appeal against the final judgment

Reasoning

The appeal was lodged against the judgment of 2/7/2020, but its grounds targeted the application of 15/10/2019 and the ruling of 21/5/2020. The court held that the proper remedy against an adverse ruling is an appeal; a litigant cannot await judgment and then re-raise those grievances. The court agreed with the respondent's submissions on estoppel.

p. 2
02

Exercise of discretion to reopen a case or set aside ex-parte proceedings

Holding

The discretion is broad but must not be exercised to reward indolence or delay; on the facts (counsel on record since 7/11/2018, hearing on 24/9/2019) the appellant showed no basis for the discretion to be exercised in his favour

Reasoning

Relying on Waweru v Ndiga, CMC Holdings v Nzioki and Rayat Trading, the court reaffirmed that the discretion to set aside ex-parte proceedings exists to prevent injustice from excusable mistake, but is not a licence for delay. With counsel on record for nearly a year before the hearing, the appellant failed to demonstrate excusable inadvertence warranting reopening.

p. 2

Legal principles established

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  • A party dissatisfied with an interlocutory ruling must appeal against it and cannot re-litigate the same issues in an appeal against the subsequent final judgment
  • The discretion to set aside an ex-parte judgment must be exercised judiciously and not to assist delay; delay defeats equity

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Evidence ActSection 146(4)
  • Civil Procedure RulesOrder 18 Rule 10
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSections 1A and 1B

Cases cited (11)

  • Raindrops Limited V County Government of Kilifi
    [2020] eKLR
  • Risoro V State Farm Mutual Automobile Insurance Co.
    [2009] 70 CPC Out Div CL
  • Ajit Surghvirdi V J.F Mchoy
    (2014) eKLR
  • Amos Munyi Njue V Denis Murithi Mutegi & Another
    [2017] eKLR
  • Shah V Mbogo
    (1967) EA 166
  • Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited
    Nairobi HCCC No. 834 of 2002
  • Karuru Munyororo V Joseph Ndumia Murage & Another
    Nyeri HCCC No. 95 of 1988
  • Waweru vs Ndiga
    (1983) KLR 236
  • Edney Adaka Ismail v Equity Bank
    [2014] eKLR
  • CMC Holdings Limited v Nzioki
    [2004] eKLR
  • Rayat Trading Co. Limited v Bank of Baroda & Tetezi House Ltd
    [2018] eKLR
On appeal from
Magistrates' Court (trial court)
Suit over plaint dated 9/10/2015 (number not stated)
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment (memorandum of appeal dated 24/7/2020)

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, "Robert K. Muthamia v Catherine Kajau Kirema [2021] KEELC 2681 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2681/eng@2021-07-07

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