Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2022] KEELC 2060 (KLR)

Nyambura N Kariuki v Joseph Njakai Kariuki (Environment & Land Case 781 of 2017) [2022] KEELC 2060 (KLR)

Environment and Land Court
17 January 2022
BEB M Eboso
1,566 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court set aside a judgment won in a defendant's absence, but only because he agreed to pay costs and return to court properly represented.

What this practically means

#

Executive summary

#
This ruling by Eboso J of the Environment and Land Court at Thika determined a notice of motion dated 26/8/2021 by the defendant seeking leave for new advocates, stay of execution, and setting aside of an exparte judgment delivered on 15/6/2020 by Gacheru J. The exparte judgment had granted the plaintiff a permanent injunction restraining the defendant from alienating or taking possession of L.R Ruiru/Ruiru East Block 1 (Githunguri) 1387 and from interfering with her and the children's quiet possession, with costs; notably, the defendant's counterclaim was left undisposed. The defendant, the plaintiff's husband and co-owner of the suit property, deponed that his previous advocates failed to inform him of the hearing date fixed on 16/10/2019 and that he learnt of the judgment only upon being served with the decree on 18/8/2021. The plaintiff opposed, noting the decree was registered on title and that the defendant's advocate was aware of court dates. The court first granted the unopposed plea for change of advocates, holding a party may choose his own advocate. Applying principles from Mbogo v Shah and James Kanyiita Nderitu v Ghikas, the court found no evidence that the defendant had been duly notified of the hearing and held it was in the interest of justice that he be heard on both the primary suit and the counterclaim. The exparte judgment was set aside conditionally upon payment of Kshs 30,000/- throw-away costs within 30 days, failing which the setting-aside order would stand vacated.

Key legal issues

#
01

Whether to set aside the exparte judgment of 15/6/2020

Holding

Set aside conditionally; the defendant was not notified of the hearing by his previous advocates and no evidence showed he was duly notified; it is in the interest of justice he be heard on both the primary suit and the counterclaim

Reasoning

The hearing date was fixed in the presence of the parties' advocates, but no evidence showed the defendant's previous advocates notified him of the hearing. The exparte judgment effectively evicted a co-owner who had lived on the suit property since 1992. Balancing the guiding principles, the interest of justice favoured allowing the defendant to be heard, but the fault lay with him and his advocates, justifying an award of throw-away costs against him.

p. 2
02

Whether leave should be granted for change of advocates

Holding

Granted; there was no opposition and the previous firm's application to cease acting was never prosecuted

Reasoning

No opposition was filed to the plea for change of advocates. A party may be represented by an advocate of choice, and the record showed Kanyi Kiruchi & Co Advocates had filed an unprosecuted application to cease acting. There was thus no proper basis to refuse leave for the new firm to act.

p. 2

Legal principles established

#
  • The court has an unfettered discretion to set aside regular exparte or default judgment, guided by reasons for non-attendance, lapse of time, triable issues, prejudice and the interest of justice
  • A party is at liberty to be represented by an advocate of his choice

Court orders

#
  1. 1.The firm of Njue Muriithi & Associates is deemed to have been granted leave to act for the defendant effective from the date of the interpartes hearing of the application dated 26/8/2021
  2. 2.The exparte judgment rendered in this suit on 15/6/2020 is set aside on condition that the defendant shall pay the plaintiff throw-away costs of the exparte proceedings and of the application, assessed at Kshs 30,000/-, to be remitted to the plaintiff's advocates within 30 days; in default, the order setting aside the exparte judgment shall stand vacated

Authorities

#

Legislation

  • Civil Procedure Rulesnot specified

Cases cited (2)

  • Mbogo & another v Shah
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philota Ghikas & another
    [2016] eKLR
Jurisdiction invoked
Inherent and discretionary jurisdiction of the court under the Civil Procedure Act and Civil Procedure Rules to set aside exparte/default judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyambura N Kariuki v Joseph Njakai Kariuki (Environment & Land Case 781 of 2017) [2022] KEELC 2060 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2060/eng@2022-01-17

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