Nganga v Gitara & 23 others
The bottom line
#A Kenyan land court let a company join a land dispute late because its evidence mattered, even though it had ignored court papers for months.
What this practically means
#Executive summary
#Key legal issues
#Whether to set aside the ex-parte judgment
The prayer failed because no ex-parte judgment in default of appearance existed on the record against the 24th Defendant
The applicant sought setting aside of an ex-parte judgment and consequential orders, claiming it was never served. However, on perusal of the court record the judge found that no such judgment had been entered against the 24th Defendant, rendering the first prayer academic and leaving nothing to set aside.
Whether leave should issue to file the statement of defence out of time
Leave was granted and the defence filed on 12th July 2022 deemed duly filed, because the applicant is a key party and no prejudice would be suffered by the respondents
Although affidavits of service showed the applicant's chairman was aware of the proceedings and had declined service, the court held the applicant is an important party whose evidence would assist the court, since both the plaintiff and the other defendants claim allocations from it. No prejudice to the respondents was demonstrated, so the discretion was exercised in favour of allowing a defence on merits.
Costs of the application
Costs were made to abide the outcome of the suit rather than being awarded to any party
The court declined to make an immediate costs order, instead directing that the costs of the application would follow the final outcome of the suit, consistent with the applicant being readmitted to the litigation despite its delay.
Legal principles established
#- A court cannot set aside an ex-parte judgment where the record shows none was entered against the applicant
- A party whose presence and evidence will assist the court in determining the dispute should be allowed to defend, absent prejudice to other parties
Court orders
#- 1.Leave granted to the 24th Defendant to file its statement of defence out of time
- 2.The 24th Defendant's Statement of Defence filed on 12th July, 2022 deemed as duly filed
- 3.The 24th Defendant to serve the Statement of Defence upon the Respondents within 7 days
- 4.The Respondents to file their Reply to Defence within 14 days upon service
- 5.The hearing of the suit (defence hearing) to proceed as earlier scheduled
- 6.Costs of the application to abide the outcome of the suit
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act; Order 37 Rule 6, Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nganga v Gitara & 23 others", Case Analysis (2023). Environment & Land Case 45A of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18040/eng@2023-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.