Curzon v Muthama & 2 others
The bottom line
#A Kenyan court refused to lift a costs judgment against an auctioneer, ruling that blaming your lawyer or claiming you acted as an agent won't undo a judgment you ignored.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd Defendant proved that service of summons was irregular or that he was unaware of the suit
Service was duly effected; the memorandum of appearance and counsel's participation on the record rebutted the claim of non-service, and the applicant failed to discharge the burden of proof.
Sections 107, 108 and 109 of the Evidence Act place the burden on the party asserting the facts. There was an affidavit of service, a memorandum of appearance filed by Osundwa & Co Advocates, and counsel cross-examined the plaintiff during the hearing. The applicant never objected to that advocate acting for him, so the claim of non-service failed for lack of proof.
Whether the agency relationship with the 1st and 2nd Defendants exempted the 3rd Defendant from paying costs
No; the argument attacked the merits of the decision and belonged on appeal, and the applicant's own fraudulent acts made him liable despite agency.
The court held that faulting the costs order on the basis of agency goes to the merits of the judgment and should have been a ground of appeal. Further, the plaintiff showed the 3rd Defendant contributed to the dispossession of the plaintiff's property, and no evidence or submissions were presented on apportionment of costs. Costs are discretionary and no basis for review was made.
Whether the 3rd Defendant deserved the court's discretion to set aside the judgment
No; he was given numerous chances to file a defence but was negligent, so he did not deserve the exercise of the court's discretion in his favour.
The court found the 3rd Defendant was granted multiple opportunities, including 21 days and a further 14 days, to file a defence and witness statement but failed to do so, resorting to adjournments. His remedy, if his advocate acted without instructions, lies in a professional negligence suit against the advocate, not in reopening the determined suit at the plaintiff's inconvenience.
Legal principles established
#- There is a presumption of regularity of service per the process server's report; the burden lies on the party questioning service to show the return is incorrect.
- An advocate's failure to execute client's instructions amounts to professional negligence, and the remedy lies against the advocate, not in setting aside the judgment.
- No one can escape liability for fraud by claiming to have acted on behalf of another.
Court orders
#- 1.The notice of motion dated June 21, 2021 is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to review/set aside its own orders (application for review and setting aside of judgment order on costs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Curzon v Muthama & 2 others", Case Analysis (2023). Environment & Land Case 993 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19132/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.