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ELCDismissedNot stated in judgment (defendant's notice of motion dated April 21, 2022)· [2023] KEELC 333 (KLR)

Nakuru Joy Teck Enterprises v Korir (Environment & Land Case 143 of 2019) [2023] KEELC 333 (KLR)

Environment and Land Court
30 January 2023
MNMwangi Njoroge
2,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru land court refused to undo a judgment against a defendant who stayed silent for over a year, blaming his lawyer without proof.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (Mwangi Njoroge J) determined the defendant's notice of motion dated April 21, 2022 seeking to set aside a judgment entered against him on February 28, 2022, together with all consequential orders, under Order 9 rules 9 and 2, Order 10 rule 11 and Order 51 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act, and article 159(2) of the Constitution. The applicant, Raphael K Korir, argued he was never notified of the hearing, should not suffer for his advocate's failure, owned the suit property as his residence, and that fraud by the plaintiff was a triable issue warranting an oral hearing. The respondent, Benjamin Kisoi Sila, opposed, contending the application was incompetent, that the hearing date was taken by consent, that the applicant was indolent and had filed another suit over the same subject matter, and that the court was functus officio. The court characterised the judgment as regular, not ex parte, and held the applicant failed to show diligence or candour: his claim to have 'stumbled on' the judgment was disbelieved, no correspondence or steps against the advocate were evidenced, a notice of change of advocates on record suggested he tracked the matter, and he delayed over a year in moving the court. Applying Savings and Loans Ltd v Susan Wanjiru Muritu and other authorities, the court dismissed the application with costs to the respondent ( borne by the applicant).

Key legal issues

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Whether the applicant showed good ground to set aside the regular judgment

Holding

Application dismissed; the judgment was regular, the applicant knew of the hearing date, was indolent, and lacked candour

Reasoning

The court found the judgment was entered after a hearing at which the defendant, who knew the date, failed to attend. His claim that he merely 'stumbled on' the judgment was disbelieved and amounted to lack of candour. He produced no correspondence or evidence of his advocate's failure, had a notice of change of advocates on record suggesting he tracked the matter, and delayed over a year before moving the court. Citing Savings and Loans Ltd v Susan Wanjiru Muritu and other authorities, the court held a litigant owns his case and must pursue it diligently.

p. 4

Legal principles established

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  • A litigant must demonstrate diligence in following up on his case with counsel; mere blame of an advocate, without evidence, does not warrant setting aside a regular judgment
  • An applicant against a regular judgment bears a heavier burden than one against an ex parte judgment

Court orders

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  1. 1.The application dated April 21, 2022 is disallowed
  2. 2.The costs of the application shall be borne by the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rules 9 and 2; Order 10 rule 11; Order 51
  • Civil Procedure Actsections 1A, 1B and 3A
  • Constitution of Kenyaarticle 159(2)(a)(b) and (d); article 50

Cases cited (8)

  • Lucy Bosire v Kehancha Divisional Land Dispute Tribunal & 2 others
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Richard Ncharpai Leiyangus v IEBC and 2 others
    no full citation given
  • Patel v East Africa Cargo Handling Company Services Ltd
    1974 EA 75
  • Savings and Loans Limited v Susan Wanjiru Muritu
    Nairobi (Milimani) HCCS No 397 of 2002
  • Racheal Njango Mwangi (suing as personal representative of the estate of Mwangi Kabaiku) v Hannah Wanjiru Kiniti & another
    [2021] eKLR
  • Peter Ngigi Kigira v Fredrick Nganga Kigira
    [2022] eKLR
  • Martin Kabaya v David Mungania Kiambi
    [2015] eKLR
Jurisdiction invoked
Order 9 rules 9 and 2, Order 10 rule 11 and Order 51 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act; article 159(2)(a)(b) and (d) of the Constitution

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, "Nakuru Joy Teck Enterprises v Korir (Environment & Land Case 143 of 2019) [2023] KEELC 333 (KLR)", Case Analysis (2023). Not stated in judgment (defendant's notice of motion dated April 21, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/333/eng@2023-01-30

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