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ELCPartially AllowedNot stated in judgment· [2021] KEELC 3187 (KLR)

Theresia Katuku Vulu v Kavata Muendo Ndolo & 5 others [2021] KEELC 3187 (KLR)

Environment and Land Court
28 May 2021
1,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court set aside a judgment won without the defendants' knowledge, because their lawyer never told them about the hearing.

What this practically means

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Executive summary

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This was a ruling on the Defendants' application dated 16th September 2020 seeking to set aside ex parte proceedings of 7th October 2019 and the judgment of 29th April 2020 entered against them in a land dispute. The Applicants, who claimed the suit property was family inheritance, blamed their former advocate's failure to inform them of the hearing; they learnt of the judgment only upon being served with an eviction notice dated 17th August 2020. The Plaintiff opposed, contending that a hearing notice was duly served on the former counsel and that the application sought to deprive her of the fruits of her judgment. The court, exercising its discretion under Order 12 Rule 7 of the Civil Procedure Rules, 2010, applied the Court of Appeal's decision in CMC Holdings Ltd v Nzioki, which holds that the setting-aside discretion exists to prevent injustice arising from excusable mistakes, and Patel v EA Cargo Handling Services, which defines a defence on the merits as one raising a triable issue. Examining the defence on record, the court found the Defendants' denials of possession and of any sale of the suit property raised reasonable averments requiring trial. It rejected the Plaintiff's contention that the application was a delay tactic or an attempt to defeat the judgment, noting it was filed promptly after the eviction notice. The application was allowed in terms of prayer (4): the ex parte proceedings and judgment were set aside, the case reopened for hearing, with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the mistake of the Applicants' former advocate is excusable so as to merit setting aside the ex parte judgment

Holding

Yes - the discretion exists to prevent injustice from an excusable mistake, and the application was made promptly upon learning of the judgment via the eviction notice.

Reasoning

The court exercised its wide discretion under Order 12 Rule 7, guided by CMC Holdings Ltd v Nzioki, holding that setting-aside discretion exists to prevent a litigant suffering injustice from an excusable mistake. The application was made approximately one month after the eviction notice, and the court found no attempt to deprive the Plaintiff of her judgment or delay justice.

p. 2
02

Whether the defence on record raises triable issues warranting a trial

Holding

Yes - the defence denies sale of the suit property and full possession, raising reasonable averments requiring trial.

Reasoning

The court examined the statement of defence, noting the Defendants denied being in full possession of the suit property and denied selling any land to the Plaintiff. The court found these averments reasonable and requiring trial for substantiation, aligning with Patel v EA Cargo Handling Services on the meaning of a triable issue.

p. 2

Legal principles established

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  • In an application to set aside an ex parte judgment, the court must consider both the reasons for non-attendance and whether the applicant has a defence raising triable issues.
  • A defence on the merits means a triable issue, not a defence that must succeed.

Court orders

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  1. 1.The ex parte proceedings of 7th October 2019 and the subsequent judgment of 29th April 2020 set aside
  2. 2.The case reopened and the Defendants afforded a right to be heard
  3. 3.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3 and 3A
  • Civil Procedure Rules, 2010Order 9 Rules 9 and 10
  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rules 1, 3, 4 and 10

Cases cited (4)

  • Patel -Vs- EA Cargo Handling Services Ltd
    [1974] EA 75
  • Mbogo -Vs- Shah
    [1968] EA 93
  • Samuel Kiti Lewa -Vs- Housing Finance Co. of Kenya Ltd & Another
  • CMC Holdings Limited -Vs- Nzioki
    [2004] 1 EA 23 (CAK)
Jurisdiction invoked
Sections 1, 1A, 3 and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 of the Civil Procedure Rules, 2010

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, "Theresia Katuku Vulu v Kavata Muendo Ndolo & 5 others [2021] KEELC 3187 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3187/eng@2021-05-28

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