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ELCPartially AllowedMisc. Application No. 12 of 2020 (arising from suit re land parcel Kajiado/Kaputiei North/59924)· [2021] KEELC 3363 (KLR)

Philip Wanjohi Kariuki v Kennedy Njenga Nyambura & 2 others; Lazarus Sankori Karino(Interested Party) [2021] KEELC 3363 (KLR)

Environment and Land Court
5 May 2021
COChristine Ochieng
2,412 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to reverse a land judgment, ruling the defendants' own inaction—not their lawyer's absence—caused the loss.

What this practically means

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Executive summary

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The Defendants/Applicants moved the court by Notice of Motion dated 30th October, 2020 under Order 51 Rule 1, Order 12 Rule 7, Order 22 Rule 22, Order 9 Rule 9 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking leave for Ondabu & Co. Advocates to come on record in place of Aunga Omwenga & Co. Advocates, setting aside of the judgment delivered on 29th January, 2020, reopening of the defence case, and a temporary stay of execution. The supporting affidavit of the 3rd Defendant, Leonard N Njau, blamed the erstwhile advocate for failing to attend the defence hearing on 16th July, 2019, which led to the defence case being closed. The Plaintiff opposed, contending the application was brought by a stranger, was inordinately late, and that the Defendants had been granted ample audience throughout. The court framed two issues. On the change of advocates, it applied Order 9 Rule 9 and Article 159(2)(d), finding no prejudice to the Plaintiff, and allowed Ondabu & Co. Advocates to come on record. On setting aside, the court reviewed the record showing the Defendants' counsel cross-examined the Plaintiff and participated in proceedings, including a consent judgement of 19th November, 2018 in favour of the Interested Party for Kshs. 19,700,000, and that the 16th July, 2019 hearing date was mutually agreed but counsel never appeared. Relying on Wachira Karani v Bildad Wachira, Parimal vs Veena and Rose Kaiza v Angelo Mpanju Kaiza, the court held the judgment was regular, the Defendants were remiss, and no sufficient cause was shown. Only prayer 2 was allowed; setting aside and stay were refused, with costs of the application awarded to the Plaintiff.

Key legal issues

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01

Change of advocates after judgment under Order 9 Rule 9

Holding

Leave granted for Ondabu & Co. Advocates to come on record; no prejudice demonstrated by the Plaintiff

Reasoning

Order 9 Rule 9 requires a court order or consent for a change of advocate after judgment. The 3rd Defendant confirmed issuing instructions to the incoming firm, and the Plaintiff did not demonstrate any prejudice. Guided by Article 159(2)(d) of the Constitution, the court allowed the change.

p. 2
02

Whether the judgment of 29th January, 2020 should be set aside and the defence case reopened

Holding

Refused; the judgment was regular and no sufficient cause was shown

Reasoning

The court reviewed the record showing Defendants' counsel was granted audience on multiple dates, cross-examined the Plaintiff, and the defence hearing date of 16th July, 2019 was mutually agreed, yet counsel failed to attend, leading to closure of the defence case. Blaming counsel alone did not amount to sufficient cause; the Defendants were remiss and the Plaintiff was the party prejudiced.

p. 3

Legal principles established

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  • A court will not usually set aside a regular judgment unless satisfied there is a defence on the merits raising a triable issue
  • 'Sufficient cause' requires that the party did not act negligently, without bona fides, or remain inactive; the discretion must be exercised judiciously with a view to substantial justice
  • A party seeking to set aside after closing of its case must show there was no remissness on its part in adducing all possible evidence at the hearing

Court orders

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  1. 1.The firm of messrs Ondabu & Co. Advocates granted leave to come on record for the Defendants in place of Aunga Omwenga & Co. Advocates.
  2. 2.Prayer 3 (setting aside the judgment of 29th January, 2020 and reopening the Defendants' case) declined.
  3. 3.Prayer 4 (temporary stay of execution) not granted.
  4. 4.Costs of the application awarded to the Plaintiff.

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 3 and 3A (invoked by Plaintiff)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (6)

  • Maina V Muriuki
    Civil Appeal No. 1079 of 1980
  • Patel V E A Cargo Handling Services Ltd
    (1974) EA at page 76
  • Habo Agencies Limited V Wilfred Odhiambo Musingo
    (2015) eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Parimal vs Veena
  • ROSE KAIZA Vs ANGELO MPANJU KAIZA
    (2009) eKLR
Jurisdiction invoked
Sections 1A, 3A of the Civil Procedure Act and Order 51 Rule 1, Order 12 Rule 7, Order 22 Rule 22, Order 9 Rule 9 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Philip Wanjohi Kariuki v Kennedy Njenga Nyambura & 2 others; Lazarus Sankori Karino(Interested Party) [2021] KEELC 3363 (KLR)", Case Analysis (2021). Misc. Application No. 12 of 2020 (arising from suit re land parcel Kajiado/Kaputiei North/59924). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3363/eng@2021-05-05

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