Nellius Wairimu Mwangi v Sarah Njambi Kiarie [2022] KEELC 500 (KLR)
The bottom line
#A Kenyan court refused to set aside a default land judgment because the defendant waited nearly a year after learning of it, showing the application was meant to delay justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant had notice of the hearing and judgment
The Defendant and her counsel had notice; both counsel were present on 28th June 2018 when the hearing date of 27th March 2019 was fixed, and the decree was served on the Defendant's counsel on 4th October 2019.
The court record showed counsel for both parties present when the hearing date was fixed, making the Defendant's contrary affidavit assertion baffling. The decree was extracted and served on the Defendant's counsel on 4th October 2019, yet the application was filed almost a year later, undermining the claim of unawareness of the judgment.
Whether the ex-parte judgment dated 18th July 2019 ought to be set aside
No. The application was brought almost a year after counsel became aware of the decree, indicating a deliberate attempt to delay, and the defence issues were already considered in the ex-parte judgment; setting aside would achieve nothing and would delay final resolution.
Applying the Shah v Mbogo principles, the discretion to set aside ex-parte judgments is meant to relieve against inadvertence or excusable mistake, not to reward delay. Here the decree had been served on the Defendant's counsel, the application came about a year later, and the defence issues had been considered in the judgment, so no injustice would be remedied by setting it aside.
Legal principles established
#- The court's discretion to set aside an ex-parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately seeks to obstruct or delay the course of justice.
- Where judgment has been entered under Order 12, the court may on application set aside or vary the judgment upon such terms as may be just.
Court orders
#- 1.The notice of motion dated 31st August 2020 is dismissed with costs to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules; Sections 3A and 63(e) of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nellius Wairimu Mwangi v Sarah Njambi Kiarie [2022] KEELC 500 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/500/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.