Rama v Fikiri & 3 others (Environment & Land Case 81 of 2007) [2023] KEELC 9 (KLR)
The bottom line
#A Kenyan court refused to undo a default judgment because the defendants waited over two years and only blamed their lawyer for missing the hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment should be set aside
No. The judgment was a regular ex parte judgment, service of the hearing notice was not disputed, the delay of over two years was unexplained and inordinate, and the Applicants failed to follow up their case.
The court classified the impugned judgment as a regular default judgment since the Defendants had been served with the hearing notice through their advocates. Such a judgment is set aside only in the court's discretion, considering the reason for default, delay, triable issues and prejudice. Here, the Applicants merely blamed their former advocate without explanation, and the application filed over two years after judgment amounted to inordinate, unexplained delay.
Whether stay of execution should be granted
No. The Applicants did not establish sufficient cause or substantial loss under Order 42 rule 6.
Counsel for the Respondent submitted that the Applicants failed to establish sufficient cause for stay under Order 42 Rule 6 and that allowing the Respondent to enjoy the fruits of judgment was in the interest of justice. The court, having found the application lacking merit, dismissed it with costs to the Respondent.
Legal principles established
#- A distinction exists between regular and irregular default judgments; an irregular default judgment is set aside ex debito justitiae as a matter of right, while a regular one is set aside at the court's discretion.
- A litigant has a duty to pursue their advocate and follow up their case; blaming the advocate alone for failure to inform of a hearing date is not an excusable mistake.
Court orders
#- 1.The application dated May 12, 2021 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Inherent jurisdiction to set aside ex parte judgments and stay of execution under Order 10 rule 11, Order 22 rule 18 and Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Rama v Fikiri & 3 others (Environment & Land Case 81 of 2007) [2023] KEELC 9 (KLR)", Case Analysis (2023). Malindi ELC Case No. 81 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/9/eng@2023-01-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.