Jacqueline Njeri Njuguna & another v Bishop Mbugua Karanja & 4 others [2022] KEELC 951 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 4th defendant established sufficient grounds for review and setting aside of the judgment of 24/6/2021
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
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.
Whether a party may simply blame his advocate's default without showing diligence
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
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.
Legal principles established
#- 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
#- 1.Messrs Gichuki Karuga & Company allowed to come on record for the 4th defendant despite judgment having been entered
- 2.The judgment dated 24/6/2021 and all consequential orders reviewed and set aside
- 3.Only the defendant's case re-opened for hearing
- 4.4th defendant to bear thrown away costs of Ksh 20,000/- to the plaintiffs
- 5.Suit to be mentioned for fixing of a hearing date on 21/4/2022
- 6.Costs to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.