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ELCPartially AllowedNot stated in the judgment (application dated 30/11/2021)· [2022] KEELC 951 (KLR)

Jacqueline Njeri Njuguna & another v Bishop Mbugua Karanja & 4 others [2022] KEELC 951 (KLR)

Environment and Land Court
10 March 2022
2,365 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru land court set aside a judgment after a defendant's lawyers missed the hearing, reopening only his defence and ordering him to pay Ksh 20,000 in costs.

What this practically means

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Executive summary

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The 4th defendant in a land suit before the Environment and Land Court at Nakuru applied by Notice of Motion dated 30/11/2021 under Article 50 of the Constitution, Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Orders 9, 12, 22 and 45 of the Civil Procedure Rules for leave for new advocates to come on record, review and setting aside of the judgment delivered on 24/6/2021 and its consequential decree, and leave to prosecute his defence. He alleged his erstwhile advocates, Waithaka Mwangi & Co. Advocates, were served with hearing and mention notices but never informed him or attended court, and that he only learnt of the judgment from a third party. The plaintiffs opposed, asserting proper service and that the applicant took no steps to follow up his case; they urged dismissal with costs. The sole issue was whether sufficient grounds existed for review. The court reviewed Order 45 and Order 12 Rule 7, and authorities cautioning against simply blaming advocates (Rajesh Rughani, Habo Agencies, Racheal Njango Mwangi) but also emphasising the court's overriding duty to do justice (Patel v EA Cargo Handling Services). Finding the defence on record raised a triable issue and that it would be a tall order to demand an affidavit of default from an erstwhile advocate, the court granted prayers (2), (3), (4) and (6): new advocates came on record, the judgment of 24/6/2021 and consequential orders were set aside, only the defendant's case was re-opened for hearing, and the 4th defendant was to pay thrown away costs of Ksh 20,000/- to the plaintiffs. The matter was to be mentioned on 21/4/2022 for fixing a hearing date.

Key legal issues

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01

Whether the 4th defendant established sufficient grounds for review and setting aside of the judgment of 24/6/2021

Holding

Yes - the court exercised its discretion in favour of the 4th defendant, finding the defence raised a triable issue and that the applicant may have been failed by his advocate

Reasoning

The applicant blamed his advocates for failing to communicate the hearing date. While courts caution against simply blaming advocates, the court accepted it would be a tall order to require a client to obtain an affidavit of default from an erstwhile advocate. The defence on record was not idle and raised facts requiring evidence. The court therefore reviewed and set aside the judgment, re-opening only the defence case, with thrown away costs to the plaintiffs.

p. 3
02

Whether a party may simply blame his advocate's default without showing diligence

Holding

No - a party has a responsibility to follow up his case, though the court may give the benefit of the doubt where the defaulting advocate is uncooperative

Reasoning

Authorities require more than accusing the advocate of failure to inform; a litigant must pursue his matter and show steps taken against a negligent advocate. However, this court acknowledged it would be a tall order to demand an affidavit of wrongdoing from a defaulting erstwhile advocate, and in appropriate cases a client may receive the benefit of the doubt.

p. 3

Legal principles established

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  • A court's discretion to set aside judgment is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist one who deliberately obstructed justice
  • A party must show a defence on the merits amounting to a triable issue before a regular judgment will be set aside

Court orders

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  1. 1.Messrs Gichuki Karuga & Company allowed to come on record for the 4th defendant despite judgment having been entered
  2. 2.The judgment dated 24/6/2021 and all consequential orders reviewed and set aside
  3. 3.Only the defendant's case re-opened for hearing
  4. 4.4th defendant to bear thrown away costs of Ksh 20,000/- to the plaintiffs
  5. 5.Suit to be mentioned for fixing of a hearing date on 21/4/2022
  6. 6.Costs to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 80
  • Civil Procedure RulesOrder 9 Rule 9(b), Order 12 Rule 7, Order 22 Rule 22 and Order 45

Cases cited (8)

  • Shah Vs. Mbogo
    (1967), E.A. 116
  • Patriotic Guards Ltd Versus James Kipchirchir Sambu
    Civil Appeal 20 of 2016
  • Gerald Mwithia v Meru College of Technology (Sued Through the Chairman Board of Governors) & another
    [2018] eKLR
  • Esther Wamaitha Njihia & 2 others v Safaricom Limited
    [2014] eKLR
  • Rajesh Rughani –v- Fifty Investment Ltd. & Another
    (2005) eKLR
  • Habo Agencies Limited –v- Wilfred Odhiambo Musingo
    (2015) eKLR
  • Racheal Njango Mwangi (Suing as Personal Representative of the Estate of Mwangi Kabaiku) v Hannah Wanjiru Kiniti & Another
    [2021] eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
Jurisdiction invoked
Article 50 of the Constitution; Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act; Order 9 Rule 9(b), Order 12 Rule 7, Order 22 Rule 22 and Order 45 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, "Jacqueline Njeri Njuguna & another v Bishop Mbugua Karanja & 4 others [2022] KEELC 951 (KLR)", Case Analysis (2022). Not stated in the judgment (application dated 30/11/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/951/eng@2022-03-10

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