Republic v Chairman Cherangany Land Disputes Tribunal & another Ex Parte Richard Chepkonga [2021] KEELC 4224 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant demonstrated a defence on the merits
The draft response annexed by the applicant did not raise any triable issues
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.
Whether the delay of two years in filing the application was explained
The delay was unreasonable and inadequately explained
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.
Whether the applicant would suffer prejudice if the orders were not granted
No prejudice was demonstrated
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.
Legal principles established
#- 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
#- 1.The application dated 8/12/2020 is dismissed in its entirety with costs to the ex-parte applicant
- 2.The interim orders of stay of execution issued earlier in the suit are vacated
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.