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ELCPartially AllowedEnvironment & Land Case 448 of 2017· [2022] KEELC 2623 (KLR)

Gathu v Kabaru (Environment & Land Case 448 of 2017) [2022] KEELC 2623 (KLR)

Environment and Land Court
23 June 2022
4,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside eviction orders against a landowner, ruling he deserved a full hearing because his draft defence raised genuine issues.

What this practically means

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Executive summary

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The Defendant, Anthony Githaiga Kabaru, moved the Environment and Land Court at Murang'a by Notice of Motion dated 16th December 2021 seeking adoption of a consent letter placing Wokabi Mathenge & Co. Advocates on record, setting aside an interlocutory judgment and a subsequent exparte judgment of 2nd July 2018, and leave to file a Defence. The suit concerned land parcel Makuyu/Makuyu Block II in Gathaite, in which the Plaintiff had obtained judgment and eviction orders after the Defendant's former advocates failed to file a Defence. The Defendant, alleging he was a farmer of limited literacy who purchased the land in 2006, said he only learnt of the eviction on 3rd December 2021 when police visited the property, having earlier been told by his former advocate that the case had been withdrawn. The Plaintiff opposed, contending the application was an abuse of process, the draft Defence a sham, and the Defendant's remedy lay against his former advocates. The court allowed the change of advocates under Order 9 Rule 9(b) on the filed consent. Although it found the default judgment regular and the Defendant had not given sufficient cause for his default, it held the draft Defence raised triable issues regarding his purchase and alleged irregular procurement of the Plaintiff's title. Invoking its discretion under section 3A, Order 10 Rule 11 and Order 12 Rule 7, the court set aside the interlocutory and exparte judgments and all consequential orders, conditioned on throw away costs of Kshs. 50,000/= to the Plaintiff, and directed the Defendant to file his Defence within 14 days with the suit to be heard expeditiously.

Key legal issues

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01

Change of advocates under Order 9 Rule 9

Holding

The executed and filed consent letter complied with Order 9 Rule 9(b) and the new firm was properly on record

Reasoning

The court noted Order 9 Rule 9(b) permits a change of advocate upon a consent filed between the outgoing and incoming advocates. A consent letter dated 15th December 2021 signed by both advocates existed and had been filed, so the requirement was satisfied and Wokabi Mathenge & Co. Advocates was properly on record.

p. 5
02

Setting aside interlocutory and exparte judgments

Holding

The Court set aside both judgments and all consequential orders, including the eviction orders

Reasoning

Although the default judgment was regular and the applicant failed to show sufficient cause for not filing a Defence or attending court, the court, guided by section 3A and the equity principles in Chemwolo and CMC Holdings, examined the draft Defence. It found triable issues on purchase of the suit property in 2006 and alleged irregular procurement of the plaintiff's title, warranting the applicant be heard rather than evicted unheard.

p. 8
03

Terms upon which setting aside is granted

Holding

Setting aside was granted on terms: throw away costs of Kshs. 50,000/= payable to the plaintiff and Defence to be filed within 14 days

Reasoning

Order 12 Rule 7 requires that a judgment be set aside upon such terms as may be just. Given the judgment of 2nd July 2018 and several enforcement applications the plaintiff had incurred, the court found her entitled to throw away costs of 50,000/= payable before commencement of the re-opened suit, and directed filing of the Defence within 14 days with expedited hearing.

p. 8

Legal principles established

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  • The discretion to set aside an exparte judgment is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
  • A court may set aside even a regular default judgment where a defence raising a triable issue is shown
  • A litigant bears a duty to follow up the progress of his case and cannot rely solely on his advocate's failure

Court orders

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  1. 1.The consent letter dated 15th December 2021 adopted and Wokabi Mathenge & Co. Advocates placed on record for the Defendant
  2. 2.Setting aside of the Interlocutory Judgment of 11th May 2018 and the exparte Judgment of 2nd July 2018 and all consequential orders emanating therefrom
  3. 3.Throw away costs of Kshs. 50,000/= payable to the Plaintiff before commencement of the re-opened suit
  4. 4.Defendant to file his Defence within 14 days, failing which the usual sanctions to ensue
  5. 5.Suit to be set down for hearing expeditiously

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 10 Rules 9, 10 & 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (9)

  • Elizabeth Kavere & Another vs Lilian Atho & Another
    (2020) eKLR
  • Patel vs Cargo Handling Services Ltd
    (1974) EA 75
  • Shah vs Mbogo
    (1969) EA 116
  • Philip Kiptoo Chemwolo & Another vs Augustine Kubende
    (1986) eKLR
  • Ruga Distributors Ltd vs Nairobi Bottlers Ltd
    (2015) eKLR
  • Shah vs Mbogo & Another
    (1967) EA 116
  • Savings and Loans Ltd vs Susan Wanjiru Muritu
    Nairobi HCCC No. 397 of 2002
  • CMC Holdings Ltd vs Nzioka
    (2004) IKLR
  • Kenya Commercial Bank vs Reuben Waweru
    High Court Civil Case No. 325 of 1999
Jurisdiction invoked
Order 9 Rule 9, Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules and section 3A of the Civil Procedure Act

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, "Gathu v Kabaru (Environment & Land Case 448 of 2017) [2022] KEELC 2623 (KLR)", Case Analysis (2022). Environment & Land Case 448 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2623/eng@2022-06-23

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