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ELCDismissedNot stated in the judgment (suit decided by ruling dated 24th June 2021 at Thika)· [2021] KEELC 2771 (KLR)

Pauline Gathoni Wabi v Ngoiri Muchangiru [2021] KEELC 2771 (KLR)

Environment and Land Court
24 June 2021
2,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to undo a land judgment against a woman who blamed her lawyers, ruling that litigants must personally follow up their own cases.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Thika, delivered by L. Gacheru J on 24th June 2021, determined a Notice of Motion dated 9th November 2020 by the defendant, Ngoiri Muchangiru. She sought leave for Muiruri Cheserek & Co Advocates to come on record, setting aside the judgment of 9th March 2020 and the proceedings of 7th October 2020, and re-opening the plaintiff's case for cross-examination. She blamed her former advocates, Muturi Njoroge & Co Advocates, for wrongly recording her phone number, proceeding without instructions, abandoning her counter-claim, and failing to inform her of the hearing and judgment dates. The plaintiff, Pauline Gathoni Wabi, opposed the application, noting the eviction orders had already been executed on 18th November 2020 and that the defendant had slept on her rights. The court first granted leave for the change of advocates under Order 9 Rule 9, there being no objection. On the substantive prayer under Order 12 Rule 7, the court found the judgment was regular: the defendant's advocates had been served, attended the hearing, sought to cease acting but never prosecuted that application, and appeared when submissions were confirmed. Applying Patel v EA Cargo Handling and related authorities, the court held the defendant had not demonstrated inadvertence or excusable mistake; she had an obligation to follow up her case and only acted upon being served with an eviction notice. The proper remedy for advocate negligence lies against the advocate, not in setting aside judgment. The application was dismissed entirely with costs to the plaintiff.

Key legal issues

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01

Threshold for setting aside ex parte judgment under Order 12 Rule 7

Holding

The court's discretion is wide but must be exercised justly; sufficient cause for non-attendance and absence of prejudice must be shown, and delay disentitles the applicant

Reasoning

The court applied Patel v EA Cargo Handling and Wachira Karani v Bildad Wachira, holding that the discretion is fettered only by the demands of justice. It found the judgment was regular since the defendant's advocates were aware of the hearing and judgment dates. The defendant failed to show inadvertence or excusable mistake, having not followed up her case from 2018 until served with an eviction notice, and the remedy for advocate negligence lies against the advocate.

p. 3
02

Whether judgment was regular or ex parte

Holding

The judgment was regular because the defendant was aware of the hearing and judgment dates through her advocates, who appeared on the hearing date and later sought to cease acting

Reasoning

The record showed the defendant's advocates were served with the hearing notice, attended court on 19th November 2018 seeking an adjournment, filed an application to cease acting on 17th December 2018, and appeared on 2nd April 2019. Since the application to cease acting was never prosecuted, the firm remained on record, so the judgment entered was a regular judgment and the setting-aside jurisdiction was narrower.

p. 2
03

Change of advocate after judgment under Order 9 Rule 9

Holding

Leave was granted as there was no objection to the incoming firm coming on record

Reasoning

Order 9 Rule 9 requires a court order or consent for a change of advocate after judgment. The incoming firm Muiruri Cheserek & Co Advocates sought leave and there was no objection, so the court granted that prayer even though the substantive application was dismissed. This is an interlocutory concession by the court, not the ratio.

p. 2

Legal principles established

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  • Discretion to set aside ex parte judgment exists to do justice, not to assist a party who has delayed the cause of justice
  • A litigant has a duty to follow up on the progress of their case and cannot hide behind an advocate's failure

Court orders

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  1. 1.Leave granted to the Law Firm of Messrs Muiruri Cheserek & Co Advocates to come on record for the Defendant in place of Messrs Muturi Njoroge & Co Advocates
  2. 2.The Notice of Motion dated 9th November 2020 is dismissed entirely with costs to the Plaintiff/Respondent
  3. 3.Judgment dated 9th March 2020 and orders of 8th October 2020 not set aside; prayer to re-open the Plaintiff's case and cross-examine the Plaintiff's witness refused

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 21 rule 1

Cases cited (8)

  • Patel Vs E.A Cargo Handling Services Ltd
    (1974) EA 75
  • Wachira Karani Vs Bildad Wachira
    (2016) eKLR
  • Gerald Mwithia Vs Meru College of Technology & Another
    [2018] eKLR
  • Michael Kamau Gakundi vs Daima Bank Limited & Another
    [2012] eKLR
  • Jomo Kenyatta University of Agriculture and Technology -v- Musa Ezekiel Oebal
    (2014) eKLR
  • David Kiptanui Yego & 134 Others V Benjamin Rono & 3 others
    [2021] eKLR
  • Water Painters International -v- Benjamin Ko'goo t/a Group of Women in Agriculture Kochieng (Gwako) Ministries
    (2014) eKLR
  • Omwoyo vs African Highlands & Produce Co. Ltd
    (2002) KLR
Jurisdiction invoked
Inherent discretion under Order 12 Rule 7 of the Civil Procedure Rules, 2010 to set aside or vary judgment; Order 9 Rule 9 for change of advocate

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, "Pauline Gathoni Wabi v Ngoiri Muchangiru [2021] KEELC 2771 (KLR)", Case Analysis (2021). Not stated in the judgment (suit decided by ruling dated 24th June 2021 at Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2771/eng@2021-06-24

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