Republic v Land Registrar Imenti North District Ex parte Henry Murithi Kirima; Florence Kananu Mutiga & another (Interested Parties) [2022] KEELC 1978 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to undo a ten-year-old default judgment because the applicant delayed unreasonably and offered no draft defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment of 28.5.2010 should be set aside
No; the application lacks merit and is dismissed with costs
The applicant was served, instructed B.G. Kariuki & Co. Advocates who entered appearance timeously, and cannot shift blame to the 2nd interested party. No draft defence or replying affidavit was attached. The delay of over ten years was unexplained, and prejudice to the respondent, whose land had been transferred, was not addressed. The discretion is equitable and not to be exercised to reward indolence.
Whether the applicant could blame the 2nd interested party for failure to file a defence
No; the notice of appointment of advocates showed the law firm acted on the applicant's instructions alone, and any local arrangement is privileged communication governed by the Advocates Act
The court found service was effected and the firm of B.G. Kariuki & Co. Advocates entered appearance on time on the applicant's instructions. Any internal arrangement with the 2nd interested party was irrelevant; abdication of responsibility to follow up counsel could not excuse the failure to file a defence.
Legal principles established
#- The discretion to set aside an ex parte judgment is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the cause of justice
- Setting aside an ex parte judgment is not a right but an equitable remedy available at the discretion of the court
Court orders
#- 1.The application dated 9.6.2010 is dismissed with costs
- Jurisdiction invoked
- Sections 3, 3A and 63 of the Civil Procedure Act; Order IXA Rules 10, 11 and XB Rule 8
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Registrar Imenti North District Ex parte Henry Murithi Kirima; Florence Kananu Mutiga & another (Interested Parties) [2022] KEELC 1978 (KLR)", Case Analysis (2022). Application dated 9.6.2010 (Notice of Motion in judicial review proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1978/eng@2022-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.