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ELCDismissedNot stated in the judgment text provided· [2023] KEELC 811 (KLR)

Kemei & another v Mohamud & another (Environment & Land Case 60 of 2014) [2023] KEELC 811 (KLR)

Environment and Land Court
16 February 2023
3,723 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 default judgment because the defendant skipped a properly-noticed hearing for a business trip and then delayed challenging the outcome.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho (M.C. Oundo, J) on a Notice of Motion dated April 14, 2022 by the 1st Defendant/Applicant seeking, under Order 10 Rule 11, Order 22 Rule 22, Order 51 Rules 1 and 15 of the Civil Procedure Rules and Sections 1A, 3A and 80 of the Civil Procedure Act, to set aside the ex-parte judgment delivered on March 10, 2022 and to stay execution of consequential orders, so that the suit could be heard on merit. The Applicant argued he was abroad on a business trip at the defence hearing, was never served with a judgment notice, and that his defence raised triable issues; he relied on authority that the right to be heard is central to justice. The Plaintiffs/Respondents opposed, characterising the application as an afterthought, noting years of adjournments, the closure of the defence case after an adjournment was refused on November 9, 2021, and the applicant's failure to file submissions or attend mention. The court framed three issues: whether to set aside the ex-parte judgment, whether to grant stay, and costs. Reviewing the entire record, the court found the applicant guilty of inaction and held that travelling abroad despite sufficient notice of the hearing did not constitute sufficient cause, applying Order 10 Rule 11 and the principles in Esther Wamaitha Njihia v Safaricom, Mbogo v Shah, Parimal v Veena and Richard Nchapi Leiyagu. The application was dismissed with costs.

Key legal issues

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01

Whether the ex-parte judgment of March 10, 2022 should be set aside

Holding

The application to set aside was refused because the applicant deliberately failed to prosecute his defence and did not demonstrate sufficient cause for his absence

Reasoning

The court reviewed the entire record showing repeated adjournments sought by the applicant's counsel, an adjournment on the defence hearing date on the ground of a business trip abroad despite ample notice, non-compliance with directions to file submissions, and non-attendance at the judgment mention. The court found the explanation inadequate, amounting to deliberate inaction rather than sufficient cause, and declined to exercise its discretion under Order 10 Rule 11. A party who chooses a business trip over a notified hearing cannot later claim denial of the right to be heard.

p. 7
02

Whether the applicant's defence raised triable issues warranting reinstatement of the suit for hearing

Holding

The court found the defence to be mere denials and saw no need to determine the issue after rejecting the setting-aside application

Reasoning

The court noted the impugned judgment had recorded that the 1st Defendant entered appearance and filed a defence that merely denied the plaint's contents, described it as an 'undefended defence' of bare denials, and held that such a defence did not raise triable issues. Having already found the applicant deliberately failed to prosecute the case, the court declined to venture further into the second issue.

p. 7

Legal principles established

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  • The law applicable to setting aside a judgment entered in default is Order 10 Rule 11 of the Civil Procedure Rules, under which the court may set aside or vary the judgment upon such terms as are just
  • Sufficient cause means the party had not acted negligently or without bona fides, and it is a question of fact tested by whether the party honestly and sincerely intended to attend
  • The discretion to set aside an ex-parte judgment is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately delays the course of justice

Court orders

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  1. 1.The Notice of Motion dated April 14, 2022 is dismissed
  2. 2.Costs of the Application to the Plaintiffs/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 51 Rules 1 and 15
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticle 159

Cases cited (10)

  • Richard Neharpi Leiyagu v Independent Electoral Boundary Commission and 2 Others
    [2013] eKLR
  • SM v HGE
    [2019] eKLR
  • Project Ltd v Presbyterian Church of East African, Ngong Parish & Another
    [2019] eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Shah v Mbogo & Another
    [1967] EA 116
  • Esther Wamaitha Njihia & 2 others v Safaricom Ltd
    [2014] eKLR
  • Mbogo v Shah
    [1968] EA 93
  • Parimal v Veena
    2011 3 SCC 545
  • Richard Nchapi Leiyagu v Independent Electoral & Boundaries Commission & 2 others
    [2014] eKLR
  • Nicholas Stephen Okaka & Another v Alfred Wanga Wesonga
    [2022] KEHC 9804 (KLR)
Jurisdiction invoked
Sections 1A, 3A and 80 of the Civil Procedure Act and Order 10 Rule 11, Order 22 Rule 22, Order 51 Rules 1 and 15 of the Civil Procedure Rules

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, "Kemei & another v Mohamud & another (Environment & Land Case 60 of 2014) [2023] KEELC 811 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/811/eng@2023-02-16

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