Jamleck Mbogo Warui v Charity Wairimu Ndegwa [2021] KEELC 3830 (KLR)
The bottom line
#A Kenyan court refused to undo a land judgment because the applicant delayed nearly a year and never explained why he missed the hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant gave sufficient reasons to warrant setting aside the ex-parte judgment on the counter-claim
No - the hearing was fixed by consent, counsel sought an adjournment which was rightly rejected, and the applicant gave no reasons for non-attendance
The counter-claim hearing was fixed by consent and counsel for the plaintiff participated throughout, even taking the hearing date. Counsel sought an adjournment on 21st March 2019 on the ground of being unable to contact his client, which the court properly rejected. The applicant's affidavit gave no explanation for the non-attendance, so there were no reasonable or sufficient grounds justifying exercise of the court's discretion in his favour.
Whether the requirements for review under Order 45 Rule 1 were met
No - the application was brought without reasonable delay and without new and important matter or evidence
The judgment sought to be reviewed was delivered on 20th September 2019 but the application was filed on 15th July 2020, nearly a year later, with no explanation for the delay as Order 45 Rule 1 requires review without unreasonable delay. Further, the applicant identified no new and important matter or evidence discovered after the decree, nor any mistake or error apparent on the face of the record warranting review.
Legal principles established
#- Setting aside an ex-parte order is a discretionary power exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, considering the nature of the action, conduct of the applicant, delay and whether the other party can be compensated by costs
- The discretion to review or set aside must be exercised judicially and not whimsically
Court orders
#- 1.The Notice of Motion dated 14th July 2020 is dismissed with costs
- Jurisdiction invoked
- Inherent discretionary powers of the Court and Order 45 Rule 1 of the Civil Procedure Act Cap. 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamleck Mbogo Warui v Charity Wairimu Ndegwa [2021] KEELC 3830 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3830/eng@2021-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.