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ELCDismissedNot stated in the judgment as provided· [2021] KEELC 4224 (KLR)

Republic v Chairman Cherangany Land Disputes Tribunal & another Ex Parte Richard Chepkonga [2021] KEELC 4224 (KLR)

Environment and Land Court
26 February 2021
1,831 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 overturn a two-year-old default judgment because the applicant waited too long and showed no valid defence.

What this practically means

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Executive summary

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This was a ruling on the 2nd respondent's Notice of Motion dated 8/12/2020, brought under Order 10 Rule 11, Order 22 Rule 52 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking to set aside an ex parte judgment delivered on 19/11/2018 in a judicial review application and leave to file a reply. The applicant argued that his former advocates, M/s C.K. Yano & Co. Advocates, were served but failed to act, and that he should not be punished for his advocate's omissions. The ex-parte applicant opposed, contending that service was admitted, the application was heard unopposed, the application was filed 24 months after judgment out of bad faith to deny him the fruits of litigation, and the applicant was guilty of laches. The court framed three issues: whether the judgment should be set aside, whether leave to reply should be granted, and costs. Applying the test from John Mukuha Mburu (defence on merits, prejudice, and explanation for delay) as drawn from Mohammed & Another v Shoka, the court found the draft response raised no triable issues; the two-year delay was unreasonable and unexplained; and the applicant had slept on his rights for nine years without following up on his case with his advocates. The court held that litigants cannot hide behind their advocates' failures, found the former advocate not blameworthy, and declined to disturb the judgment. The application was dismissed in its entirety with costs to the ex-parte applicant, and the interim orders of stay of execution were vacated.

Key legal issues

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01

Whether the applicant demonstrated a defence on the merits

Holding

The draft response annexed by the applicant did not raise any triable issues

Reasoning

The draft response merely narrated events leading to the filing of the judicial review application and did not counter the averments in the ex-parte applicant's supporting affidavit. A defence on the merits need not be a defence that must succeed, but must raise a triable issue; none was raised here.

p. 2
02

Whether the delay of two years in filing the application was explained

Holding

The delay was unreasonable and inadequately explained

Reasoning

Judgment was delivered on 19/11/2018 and the application filed on 8/12/2020, a delay of two years. Although a litigant should not suffer for an advocate's transgressions, litigants must follow up on their cases. The applicant made no effort for nine years and failed to show communication with his former advocates.

p. 3
03

Whether the applicant would suffer prejudice if the orders were not granted

Holding

No prejudice was demonstrated

Reasoning

The applicant neither in the application nor the supporting affidavit demonstrated what prejudice he would suffer if the ex parte judgment stood, so this element of the test for setting aside default judgment also failed.

p. 3

Legal principles established

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  • The discretion to set aside an ex parte judgment is unfettered but is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructs or delays the course of justice.
  • A litigant has a duty to pursue his or her case and cannot rely solely on an advocate's failure to attend court to have a default judgment set aside.

Court orders

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  1. 1.The application dated 8/12/2020 is dismissed in its entirety with costs to the ex-parte applicant
  2. 2.The interim orders of stay of execution issued earlier in the suit are vacated

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 52
  • Civil Procedure ActSection 3A

Cases cited (5)

  • Patel v EA Cargo Handling Services Ltd
    (1974) EA 75
  • John Mukuha Mburu -vs- Charles Mwenga Mburu
    (2019) eKLR
  • Mohammed & Another vs Shoka
    (1990) KLR 463
  • Savings and Loans Limited-v- Susan Wanjiru Muritu
    (Nairobi) (Milimani) HCC NO. 397/2002
  • Shah -vs- Mbogo
    (1979) EA 116
Jurisdiction invoked
Order 10 Rule 11, Order 22 Rule 52 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Republic v Chairman Cherangany Land Disputes Tribunal & another Ex Parte Richard Chepkonga [2021] KEELC 4224 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4224/eng@2021-02-26

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