Masinde v Wafula (Environment & Land Case 144 of 2017) [2022] KEELC 3028 (KLR)
The bottom line
#A Kenyan court set aside a land judgment won by default, but only partially and on strict conditions, showing courts won't fully excuse absent defendants.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant demonstrated sufficient cause for setting aside the ex parte judgment
Yes. The court found the claimed communication breakdown with former advocates probable, as the former counsel failed to attend court on numerous properly served dates and no explanation was furnished
The court reviewed the court file and found the defendant's former counsel absent on multiple dates despite proper service of hearing and mention notices, with no reasons given. It therefore gave the defendant the benefit of doubt that he was unaware of the proceedings. The dispute between brothers also weighed in favour of resolving the matter on its merits rather than on attendance failures, making the reasons furnished sufficient cause.
Whether the 266-day delay in filing the application was inordinate and disqualifying
No. Applying Cecilia Wanja Waweru, the court examined the applicant's conduct and found the application was made in good faith, the defendant having attempted an earlier set-aside application in December 2021
The court held there is no set rule for inordinate delay; the applicant's conduct from judgment to filing must be assessed. The defendant claimed he only learned of the judgment upon service of the bill of costs, and his attempt to file an earlier application on December 22, 2021 evidenced good faith. Interest of justice and compensatory costs justified sustaining the application despite the delay.
Whether a mistake by an advocate should be visited on the client
The general principle is that counsel's mistakes should not be visited on the client, but courts now scrutinize such claims; litigants have a duty to follow up their cases and cannot use counsel as scapegoats
Relying on Shah v Mbogo, Pithon Waweru Maina, Ruga Distributors, Utalii Transport and Nigerian authorities, the court held that while the discretion exists to relieve against inadvertence, litigants must demonstrate their own diligence. Where errors stem from counsel's negligence or malpractice, the remedy lies against the advocate, not automatic setting aside of the judgment.
Legal principles established
#- The court's discretion to set aside ex parte judgments is wide and is to be exercised to avoid injustice, but not to assist a party who deliberately obstructed or delayed the course of justice
- A litigant bears a duty to follow up on the progress of his case with his advocate; blanket reliance on counsel's mistake will not automatically absolve a litigant
- Whether delay is inordinate depends on the circumstances of the case, including the applicant's conduct from the time judgment was entered to the filing of the application
- Where the interest of justice dictates, an application may be granted notwithstanding delay, with costs as compensation to the decree-holder
Court orders
#- 1.The ex parte judgment dated June 7, 2021, the subsequent decree dated June 23, 2021 and all other consequential orders are set aside, conditional on payment of thrown away costs, and only to the extent that the closure of the plaintiff's and defence cases are set aside
- 2.The matter shall be set down for further hearing on a priority basis
- 3.The hearing shall proceed from cross examination of the plaintiff
- 4.The plaintiff is awarded thrown away costs of KShs 50,000.00 to be paid within 21 days, failing which orders (a), (b) and (c) shall automatically lapse
- Jurisdiction invoked
- Articles 50 and 159(2)(d) of the Constitution; sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act; order 12 rule 7, order 22 rules 22 and 25 and order 51 rules 1, 3 and 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masinde v Wafula (Environment & Land Case 144 of 2017) [2022] KEELC 3028 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3028/eng@2022-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.