Gathu v Kabaru (Environment & Land Case 448 of 2017) [2022] KEELC 2623 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Change of advocates under Order 9 Rule 9
The executed and filed consent letter complied with Order 9 Rule 9(b) and the new firm was properly on record
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.
Setting aside interlocutory and exparte judgments
The Court set aside both judgments and all consequential orders, including the eviction orders
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.
Terms upon which setting aside is granted
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
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.
Legal principles established
#- 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
#- 1.The consent letter dated 15th December 2021 adopted and Wokabi Mathenge & Co. Advocates placed on record for the Defendant
- 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.Throw away costs of Kshs. 50,000/= payable to the Plaintiff before commencement of the re-opened suit
- 4.Defendant to file his Defence within 14 days, failing which the usual sanctions to ensue
- 5.Suit to be set down for hearing expeditiously
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.