Kariuki v Kabaru (Environment & Land Case 446 of 2017) [2022] KEELC 2815 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment that would have evicted a landowner, because he deserved a hearing despite his own delay.
What this practically means
#Executive summary
#Key legal issues
#Whether a change of advocate after judgment complies with Order 9 Rule 9
A filed consent between outgoing and incoming advocates satisfies Order 9 Rule 9(b); the incoming firm is properly on record.
Order 9 Rule 9(b) requires an order of the court or a filed consent between the outgoing advocate and the proposed incoming advocate where a party changes advocates after judgment. The Applicant executed and filed a consent dated 15th December 2021, satisfying the rule, so Wokabi Mathenge & Co. Advocates were properly on record.
Whether the ex parte judgment of 2nd July 2018 should be set aside
Set aside on terms, because the draft defence raises triable issues and drastic eviction orders had issued without the Defendant being heard.
Though the judgment was regular, the court's discretion under Order 12 Rule 7 is unlimited and must be exercised to do justice. The Defendant alleged occupation since 2007 and possible fraud in the Plaintiff's 2016 title; the draft defence raised triable issues. Denying him a hearing on drastic eviction orders would occasion injustice, so setting aside was warranted on terms of throw-away costs.
Whether the Defendant gave sufficient reasons for failure to file a defence and attend court
No sufficient reasons; a litigant has a duty to follow up his case and cannot rely solely on an advocate's default.
The Defendant was served with summons, appointed an advocate who filed a notice of appointment, and the advocate was served with hearing notices. The litigant had a duty to check the progress of his case, and delay from 2017 to 2021 was unexplained. However, this did not outweigh the triable issues raised in the draft defence.
Legal principles established
#- A court's discretion to set aside an ex parte judgment must be exercised judiciously and upon such terms as are just, and even absent sufficient reasons for non-attendance, the court should consider whether the draft defence raises triable issues.
Court orders
#- 1.The consent dated 15th December 2021 adopted; Wokabi Mathenge & Co. Advocates placed on record for the Defendant
- 2.The ex parte judgment dated 2nd July 2018 and consequential orders set aside
- 3.Plaintiff awarded throw-away costs of Ksh. 50,000/= payable before the reopened suit commences for hearing
- 4.Defendant directed to file his Defence within 14 days from the date of the ruling
- 5.Suit to be set down for hearing expeditiously
- 6.Costs of the Application to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Kabaru (Environment & Land Case 446 of 2017) [2022] KEELC 2815 (KLR)", Case Analysis (2022). Environment & Land Case 446 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2815/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.