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ELCPartially AllowedEnvironment & Land Case 446 of 2017· [2022] KEELC 2815 (KLR)

Kariuki v Kabaru (Environment & Land Case 446 of 2017) [2022] KEELC 2815 (KLR)

Environment and Land Court
23 June 2022
4,089 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 a default judgment that would have evicted a landowner, because he deserved a hearing despite his own delay.

What this practically means

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Executive summary

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The Defendant, Anthony Githaiga Kabaru, filed a Notice of Motion dated 16th December 2021 seeking (i) adoption of a consent placing Wokabi Mathenge & Co. Advocates on record in place of Waithira Mwangi & Co. Advocates, (ii) setting aside of the interlocutory judgment entered on 11th May 2018 and leave to file a defence, and (iii) setting aside of the ex parte judgment of 2nd July 2018 and all consequential orders, including an eviction order issued on 21st November 2019, which he said he only learnt of on 3rd December 2021 when police attended the suit property, Makuyu/Makuyu/Block II/1284. He claimed his former advocate misled him that the suit had been withdrawn and that he is an illiterate farmer in occupation since 2007. The Plaintiff opposed, arguing the judgment was regular, the former advocate was served with all notices, the draft defence was a sham raising no triable issues, and the Defendant's remedy lay against his advocate. L. Gacheru J held that the consent complied with Order 9 Rule 9(b) and placed the new firm on record; that the stay prayer was overtaken by events; and that although the Defendant gave no sufficient reasons for the default, the court's discretion under Order 12 Rule 7 must be exercised judiciously, and the draft defence raised triable issues - including alleged fraud in the Plaintiff's 2016 title and long occupation - warranting a hearing. The court set aside the ex parte judgment and consequential orders on terms: throw-away costs of Kshs. 50,000/= to the Plaintiff payable before the reopened suit commences, the Defendant to file his defence within 14 days, and the suit to be heard expeditiously, with costs of the application to the Plaintiff.

Key legal issues

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01

Whether a change of advocate after judgment complies with Order 9 Rule 9

Holding

A filed consent between outgoing and incoming advocates satisfies Order 9 Rule 9(b); the incoming firm is properly on record.

Reasoning

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.

p. 6
02

Whether the ex parte judgment of 2nd July 2018 should be set aside

Holding

Set aside on terms, because the draft defence raises triable issues and drastic eviction orders had issued without the Defendant being heard.

Reasoning

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.

p. 8
03

Whether the Defendant gave sufficient reasons for failure to file a defence and attend court

Holding

No sufficient reasons; a litigant has a duty to follow up his case and cannot rely solely on an advocate's default.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The consent dated 15th December 2021 adopted; Wokabi Mathenge & Co. Advocates placed on record for the Defendant
  2. 2.The ex parte judgment dated 2nd July 2018 and consequential orders set aside
  3. 3.Plaintiff awarded throw-away costs of Ksh. 50,000/= payable before the reopened suit commences for hearing
  4. 4.Defendant directed to file his Defence within 14 days from the date of the ruling
  5. 5.Suit to be set down for hearing expeditiously
  6. 6.Costs of the Application to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of Kenya 2010Right to fair hearing

Cases cited (8)

  • Philip Kiptoo Chemwolo & Mumias Sugar Co. vs Augustine Kubede
    (1982-1988) KAR
  • Moniks Agencies Ltd vs Kenya Airports Authority (KAA)
    (2019) eKLR
  • Patel vs. E.A Cargo Handling Services
    (1974) EA 75
  • Ruga Distributors Ltd Vs Nairobi Butters Ltd
    (2015) eKLR
  • Shah vs Mbogo & Another
    (1967) EA 116
  • Savings & Loans Ltd vs Susan Wanjiru Muritu
    Nairobi HCC No. 397 of 2002
  • CMC Holdings Ltd Vs Nzioka
    (2004) 1 KLR
  • Kenya Commercial Bank Ltd Vs Reuben Waweru D Kigathi and Another
    Nairobi HCC No. 325 of 1999
Jurisdiction invoked
Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules

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, "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.