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ELCDismissedNot stated in judgment· [2022] KEELC 500 (KLR)

Nellius Wairimu Mwangi v Sarah Njambi Kiarie [2022] KEELC 500 (KLR)

Environment and Land Court
24 March 2022
1,553 words in judgment
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The bottom line

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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

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Executive summary

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This was a ruling on the Defendant's Notice of Motion dated 31st August 2020, brought under Order 10 Rule 11 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act, seeking to set aside the ex-parte judgment entered against her on 18th July 2019 and to be given an opportunity to be heard. The Defendant, through affidavits of her Advocate Dominic Njuguna Mbigi and her attorney Jane Wanjiku Mbugua, claimed neither she nor her counsel was served with a hearing notice for 27th March 2019 and were unaware of the hearing and judgment. The Plaintiff opposed, asserting both counsel were present when the hearing date was fixed on 28th June 2018, that the matter properly proceeded ex-parte, and that the application was an afterthought filed after the decree came up for taxation, with a delay of about one year. Applying Order 12 Rule 7 and the principles in Shah v Mbogo, the court held that the discretion to set aside ex-parte judgments exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist those who deliberately obstruct or delay the course of justice. The record showed both counsel were present when the date was fixed, and the decree had been served on the Defendant's counsel on 4th October 2019, yet the application was filed almost a year later. The court also noted the issues in the Defendant's defence had been considered in the ex-parte judgment and nothing would be achieved by setting it aside. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the Defendant had notice of the hearing and judgment

Holding

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.

Reasoning

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.

p. 2
02

Whether the ex-parte judgment dated 18th July 2019 ought to be set aside

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 31st August 2020 is dismissed with costs to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Constitution of Kenya, 2010Article 50

Cases cited (8)

  • Shah v. Mbogo and Another [1967] E.A 116
    [1967] EA 116
  • Christopher Garo Nyawade v H. Young & Company (E.A)
  • Moi University v Vishya Builders Limited - Civil Appeal No.296 of 2004 (unreported)
    Civil Appeal No.296 of 2004
  • Isaac Awuondo v Surgipharm Limited & Another [2011] eKLR
    [2011] eKLR
  • Mark Bushuru Angalia v Frodak Kenya Limited [2020] eKLR
    [2020] eKLR
  • Board of Management St Augustine Secondary School v Chambalili Trading Co. Ltd [2021] eKLR
    [2021] eKLR
  • Satya Bhama Gandi v Director of Public Prosecutions & 3 Others [2018] eKLR
    [2018] eKLR
  • John Kimini Kamutu v Joseph Macharia Ngunjiri & 3 others [2021] e KLR
    [2021] eKLR
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

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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, "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.