Namukana & another v Manyonge & another
The bottom line
#A Kenyan court refused to undo a land judgment because the defendants skipped a hearing date their own lawyer had agreed to and waited a year to act.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants were aware of the hearing date of November 6, 2017
The hearing date was taken by consent in the registry on June 9, 2017 in the presence of counsel for both parties; the defendants' claim of non-service was factually false
The record showed the consent letter signed by clerks for both advocates. Mukunya J had confirmed at the hearing that the date was taken by consent. Once counsel consented to a date, no further service was necessary, so the defendants' assertion that they had no opportunity to defend was dishonest.
Whether the delay of about 12 months in moving the court was excusable
The delay was inordinate and unexplained; the defendants and their counsel on record must have known of the judgment from the taxation notice served in 2019
The Bill of Costs was filed in March 2018 and taxation notices served on the firm of Situma & Company Advocates, which remained on record with no evidence of withdrawn instructions or an application to cease acting. The defendants should have moved to court upon service of the taxation notice, not upon the auctioneers' proclamation.
The principles governing setting aside of ex-parte judgments
The court exercises a judicial discretion to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructed or delayed justice
Relying on established Court of Appeal and East African authorities, the court held that the discretion is exercised on evidence and sound legal principles, considering all circumstances before and after judgment, and requires full and frank disclosure and clean hands from the applicant.
Legal principles established
#- Where a hearing date is taken by consent of a party's counsel, no further service of a hearing notice on the party or counsel is necessary
- Setting aside ex-parte judgments is discretionary and is not meant to assist a party who deliberately sought to obstruct or delay the course of justice
- A party must be given a reasonable opportunity to be heard; once given and not utilized, the party can only be heard on why it was not utilized
Court orders
#- 1.The Notice of Motion dated December 16, 2020 is dismissed with costs to the plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land Bokoli/bokoli/1502; application under Order 12 Rules 7, 22 and 21 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namukana & another v Manyonge & another", Case Analysis (2022). Civil Case 224 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15008/eng@2022-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.