Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment· [2022] KEELC 1061 (KLR)

Mary Nyambura Gachui v Joseph Ndichu Gachui & 7 others [2022] KEELC 1061 (KLR)

Environment and Land Court
24 February 2022
LKL. Komingoi
2,001 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Nairobi court set aside a default land judgment because missing a hearing due to traffic and blocked court entry counted as excusable, not careless.

What this practically means

#

Executive summary

#
This is a ruling on the Defendants' notice of motion dated 23rd July 2020 seeking to set aside an ex parte judgment entered on 27th February 2020 following the non-attendance of the Defendants and their advocate at the hearing on 22nd July 2019, and to allow the Defendants to cross-examine the Plaintiff and proceed with their defence and counterclaim. The application was brought under Order 22 Rule 22, Order 1, Order 12 Rules 2 and 7 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Code. The 1st Defendant deponed that he was denied entry to the court premises between 1.20 pm and 2.00 pm, while his advocate, Mary Wanjiru Muhuhu, deponed that she was held up in traffic and arrived at 2.10 pm. The Plaintiff opposed the application, disputing that the gate was locked and contending that the Defendants had not explained the one-year delay in filing the application. The Plaintiff relied on Parimal v Veena (as cited in Wachira Karani v Bildad Wachira) and Julius Mbaabu Marete v Tom Ayora; the Defendants relied on Martha Wangari Karua v IEBC and Karen Blixen Camp. The court framed two issues: whether the motion was merited and costs. Applying Patel v EA Cargo Handling Services Ltd and Richard Nchapai Leiyangu v IEBC (via Wachira Karani), the court found the explanations reasonable, held that sufficient cause had been demonstrated, and allowed the application. The ex parte judgment and consequential orders were set aside on condition that the Defendants pay throw away costs of Kshs. 10,000/- within 21 days, with the Defendants bearing the costs of the application.

Key legal issues

#
01

Whether the Defendants demonstrated sufficient cause to set aside the ex parte judgment

Holding

Yes. The explanations given by the Defendants' counsel and the 1st Defendant were found reasonable, warranting exercise of discretion in their favour.

Reasoning

The court found that counsel explained her failure to attend at 1.30 pm due to traffic, and the 1st Defendant stated he was denied entry to the court premises from 1.20 pm to 2.00 pm. Applying the Patel v EA Cargo Handling principles and the Leiyangu guidance, the court held the explanation reasonable and excusable, and that sufficient cause had been demonstrated to set aside the ex parte judgment of 27th February 2020.

p. 3

Legal principles established

#
  • Where there is a regular judgment, the court will not usually set it aside unless satisfied there is a defence on the merits amounting to a triable issue.
  • The discretion to set aside ex parte judgments is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction of justice.

Court orders

#
  1. 1.That the exparte judgment entered on 27th February 2020 and all consequential orders are hereby set aside on condition that the Defendants do pay the Plaintiff throw away costs of Kshs.10,000/- within twenty one (21) days from the date of this ruling.
  2. 2.That costs of this application be borne by the Defendants.

Authorities

#

Legislation

  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 1
  • Civil Procedure RulesOrder 12 Rules 2 and 7
  • Civil Procedure CodeSections 1A and 3A

Cases cited (7)

  • Parimal v Veena
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Julius Mbaabu Marete v Tom Ayora & 3 others
    [2018] eKLR
  • Martha Wangari Karua v IEBC
  • Karen Blixen Camp v Kenya Hotels and Allied Workers Union
    [2018] eKLR
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
  • Richard Nchapai Leiyangu vs IEBC & 2 others
    [2013] eKLR
Jurisdiction invoked
Order 22 Rule 22, Order 1, Order 12 Rules 2 and 7 of the Civil Procedure Rules, and Sections 1A and 3A of the Civil Procedure Code

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mary Nyambura Gachui v Joseph Ndichu Gachui & 7 others [2022] KEELC 1061 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1061/eng@2022-02-24

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