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ELCPartially Allowed· [2021] KEELC 3244 (KLR)

Annah Kakuvi Mwania v Alphonce Mbithi Malombe & 2 others [2021] KEELC 3244 (KLR)

Environment and Land Court
21 May 2021
OAO. A. Angote
1,636 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 refused to overturn a default judgment because the defendants ignored their own case for years, blaming their lawyer too late.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O. A. Angote, J) determined a Notice of Motion dated 12th October, 2020 by the 1st and 2nd Defendants seeking, principally, to set aside an ex-parte judgment delivered on 18th September, 2020, a stay of execution, leave to come on record through new counsel (J. Kamanda & Co. Advocates), and an opportunity to defend the suit on the merits. The Defendants blamed their former advocate, Anthony M. Mulekyo & Co. Advocates, who was served with a hearing notice for 15th October, 2019 but did not attend; the Plaintiff testified and the suit was fixed for judgment. The Plaintiff opposed, arguing the Defendants showed no interest, failed to follow up the matter, and were aware their advocate had sought to cease acting. The court reviewed the settled principles for setting aside ex-parte judgments, including the requirement of proper service or sufficient cause, and the qualification that a litigant is bound by an advocate's default unless privy to it or responsible for it through failure to instruct. On the evidence, the court found that since filing their Defence in 2011 the Defendants neither instructed their advocate nor followed up the suit; they were privy to the default; and they offered no sufficient reasons for non-attendance on 15th October, 2019 or 14th July, 2020. Prayer (a), allowing J. Kamanda & Co. Advocates to come on record, was granted; the remainder of the application was dismissed with costs.

Key legal issues

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01

Whether the Defendants demonstrated sufficient cause for setting aside the ex-parte judgment

Holding

They did not; the Defendants failed to instruct their advocates or follow up the suit and were privy to the default

Reasoning

The court traced the history: the advocates had signalled lack of instructions as early as 2017, the application to cease acting was dismissed for want of prosecution, and the hearing notice was duly served. The Defendants gave no instructions since 2011 and only learned of the hearing in September 2020. The discretion to set aside exists to avoid injustice, not to reward indolence.

p. 3
02

Whether the Defendants' advocates were duly served with the hearing notice

Holding

Yes; the firm of Anthony M. Mulekyo was served with the hearing notice for 15th October, 2019 without reservation

Reasoning

The record showed the hearing notice was received on 9th August, 2019 without reservation, and the Plaintiff testified on the hearing date. Service being proper, the only ground left was sufficient cause for non-attendance, which the Defendants failed to establish.

p. 2

Legal principles established

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  • A litigant represented by an advocate is bound by the advocate's acts and omissions unless privy to the default or the default results from the litigant's failure to give instructions
  • To set aside an ex-parte judgment the court must be satisfied either that the defendant was not properly served or that failure to appear was due to sufficient cause

Court orders

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  1. 1.The firm of J. Kamanda & Co. Advocates allowed to come on record in place of Anthony M. Mulekyo & Co. Advocates (prayer (a) granted)
  2. 2.The Application dated 12th October, 2020 dismissed with costs in respect of all other prayers

Authorities

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Cases cited (9)

  • Esther Wamaitha Njihia & 2 Others vs. Safaricom Limited
    (2014) eKLR
  • Wachira Karani vs. Bildad Wachira
    (2016) eKLR
  • Peter Kiplagat Rono vs. Family Bank Limited
    (2018) eKLR
  • Stephen Ndichu vs. Monty's Wines and Spirits
  • Patel vs. E.A. Cargo Handling Services Ltd
    [1974] E.A 75
  • Shah vs. Mbogo
    [1969] E.A 116
  • Sebei District Administration vs. Gasyali
    [1968] E.A. 300
  • Ongom vs. Owota
  • Gideon Mose Onchwati vs. Kenya Oil Co. Ltd & Another
Jurisdiction invoked
Inherent discretion of the court to set aside ex-parte judgments (civil procedure discretion; no specific provision cited in the extract)

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, "Annah Kakuvi Mwania v Alphonce Mbithi Malombe & 2 others [2021] KEELC 3244 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3244/eng@2021-05-21

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