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ELCDismissedEnvironment & Land Case 208 of 2011· [2022] KEELC 14828 (KLR)

Onga & 26 others v Mbukoni Holdings Limited & 2 others

Environment and Land Court
15 November 2022
COCA Ochieng
2,662 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to reopen a lost case because the defendant repeatedly missed hearings and only blamed her lawyer.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (CA Ochieng, J) determined the 2nd defendant's (Angela Nzisa Kitosi) notice of motion dated March 18, 2022 seeking to set aside the judgment, decree and consequential orders of February 16, 2022 and leave to reopen her defence and counter-claim, brought under Article 159(2)(d) of the Constitution, Order 12 rule 7 and Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. The application was supported by an affidavit of her advocate, Phanuel Omondi, who blamed counsel's inadvertent failure to attend the defence hearing on October 6, 2021. The plaintiffs, led by Gabriel Onga, opposed, contending the hearing date was by consent, the matter had always proceeded in open court, the defence had already enjoyed several adjournments including a last one, and the advocate's diary showed this matter diarized first ahead of an ELRC application before a resident magistrate. The court traced the procedural history, distinguished Sayaton Ene Mututua Siringet (where service was unproven), and held that the 2nd defendant showed remissness and no sufficient cause, that blaming counsel would not do, and that the plaintiffs would be prejudiced by further delay. The application was dismissed with costs. Notably, the 2nd defendant herself did not swear an affidavit, and she had also filed a notice of appeal dated March 7, 2022.

Key legal issues

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01

Whether the judgment of February 16, 2022 should be set aside and the defence reopened

Holding

The application was dismissed; no sufficient cause was shown for the 2nd defendant's repeated non-attendance and the discretion to set aside was declined.

Reasoning

The court traced the proceedings showing the defence hearing was adjourned several times, with a last adjournment granted, yet the 2nd defendant and her counsel failed to attend on October 6, 2021, sending another advocate to hold brief. Her counsel instead attended an ELRC application before a resident magistrate despite her own diary showing this matter diarized first. The 2nd defendant did not swear an affidavit herself, leaving her advocate to blame the erstwhile advocate. The court distinguished Sayaton Ene Mututua Siringet, where there was no proof of service, and found remissness and prejudice to the plaintiffs from further delay.

Legal principles established

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  • A regular judgment will not be set aside unless the applicant demonstrates sufficient cause and a defence on the merits raising a triable issue; blaming counsel, without more, does not amount to sufficient cause.

Court orders

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  1. 1.The 2nd defendant's notice of motion application dated March 18, 2022 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 22 rule 22
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (16)

  • Wachira Karani v Bildad Wachira
    (2016) eKLR

    Principles for setting aside judgments; sufficient cause; doing substantial justice

  • Shailesh Patel t/a Energy Company of Africa v Kessels Engineering Works Pvt Limited & 2 others
    (2014) eKLR
  • Pithon Waweru Maina v Thuka Mugiria
    (1983) eKLR
  • Shah v Mbogo
    (1967) EA 116
  • Shabir Din vs Ram Parkash Anand
    (1955) 22 EACA 48
  • Sammy Maina v Stephen Muriuki
    (1984) eKLR
  • CMC Holdings Limited v Nzioki
    (2004) 1EA 23
  • Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono
    (2015) eKLR
  • Sayaton Ene Mututua Siringet v Philip Amusi & another
    (2018) eKLR

    Setting aside ex parte judgment; distinguished on facts - no service/notice in that case

  • Elizabeth Kavere & another v Lillian Atho & another
    (2020) eKLR
  • Mukwano Distributors Ltd v Seuri Legusi Sanoye
    (2020) eKLR
  • Samson Karino Ole Nampasa v Kaana Ka Arume Co Ltd
    (2016) eKLR
  • Machira t/a Machira & Co Advocates v East Africa Standard (No 2)
    (2002) KLR 63
  • Rose Kaiza v Angelo Mpanju Kaiza
    (2009) eKLR

    Party seeking setting aside must show no remissness on his part in adducing evidence

  • Patel v East Africa Cargo Handling Services

    Regular judgment will not be set aside unless there is a defence on the merits raising a triable issue (quoted within Wachira Karani)

  • Parimal vs Veena

    Meaning of 'sufficient cause' - party must not have acted negligently or remained inactive (quoted within Wachira Karani)

Jurisdiction invoked
Article 159(2)(d) of the Constitution; Order 12 rule 7 and Order 51 rule 1 of the Civil Procedure Rules; sections 1A, 1B and 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, "Onga & 26 others v Mbukoni Holdings Limited & 2 others", Case Analysis (2022). Environment & Land Case 208 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14828/eng@2022-11-15

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