Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELCA No. E024 of 2022· [2024] KEELC 223 (KLR)

Muiruri v Mwangi & 2 others (Environment & Land Case E002 of 2021) [2024] KEELC 223 (KLR)

Environment and Land Court
25 January 2024
2,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to overturn a default judgment against a landowner who ignored court documents until faced with a Bill of Costs.

What this practically means

#

Executive summary

#
This was a ruling on a Notice of Motion dated 8th June 2023 by the 1st Defendant, Samuel Ndungu Mwangi, seeking to stay or set aside the judgment delivered on 26th May 2023, to enlarge time to file a defence out of time, and to reopen the case afresh. The applicant explained that he instructed Chris Maina & Co. Advocates who filed a Notice of Appointment on 15th July 2022 but failed to file a defence; that he was diagnosed with high blood pressure and bedridden for six months; and that he only learned of the judgment when served with a Judgment Notice at Kigumo Law Courts on 4th May 2023 while attending a criminal case in which the 2nd and 3rd Defendants were charged with forgery over the suit property. The respondents opposed, asserting that all parties were served, the Notice of Appointment was defective, there was no evidence of sickness, the draft defence was a sham, and the applicant only moved after being served with a Bill of Costs. The court, applying the Court of Appeal's principles in James Kanyiita Nderitu, Shah v Mbogo, Patel v E.A. Cargo Handling Services and Toshika Construction, found that this was a regular default judgment and the discretion to set aside exists but is not granted as a matter of course. No evidence of sickness was annexed; the applicant was able to attend another court on 4th May 2023; and he took the court for granted. The court found he was deliberately delaying the cause of justice and dismissed the application entirely with costs to the 2nd and 3rd Defendants/Respondents.

Key legal issues

#
01

Whether the applicant gave a good explanation for failing to enter appearance and file a defence

Holding

The explanation was not credible: no evidence of sickness was annexed, and the applicant attended another court on 4th May 2023 but not this court

Reasoning

The applicant was duly served with summons and appointed an advocate who filed a Notice of Appointment but no defence. His claim of high blood pressure was unsupported by any documentary evidence. He attended Kigumo Law Courts on 4th May 2023 in a criminal matter but could not attend this court, showing he was not incapacitated. The court concluded he took the court for granted and only acted after being served with the Bill of Costs.

p. 4
02

Whether a regular default judgment should be set aside in the interest of justice

Holding

No - the court declined to exercise its discretion in the applicant's favour given the inordinate, deliberate default

Reasoning

The court applied the Shah v Mbogo and James Kanyiita Nderitu principles: the discretion exists but is not granted as a matter of course. Setting aside would take the plaintiff back in time and cause delay. The failure to file a defence was inordinate, the applicant's advocate did not follow up the case, and the applicant only woke up after service of the Bill of Costs. The application was therefore dismissed with costs.

p. 5

Legal principles established

#
  • In a regular default judgment, the defendant may move the court under Order 10 Rule 11 to set aside the default judgment, and the court has an unfettered discretion considering reasons for default, lapse of time, triable issues and prejudice
  • The discretion to set aside an ex parte judgment is to be exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party deliberately obstructing or delaying justice
  • Setting aside an ex parte judgment is not granted as a matter of course; the court must be satisfied a good explanation has been offered

Court orders

#
  1. 1.The Notice of Motion Application dated 8th June 2023 is dismissed entirely
  2. 2.Costs of the application awarded to the 2nd and 3rd Defendants/Respondents

Authorities

#

Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 10 Rule 11

Cases cited (4)

  • James Kanyiita Nderitu & another v Marious Philotas Ghikas & another
    [2016] eKLR
  • Shah vs Mbogo
    (1967) EA 166
  • Patel vs EA Cargo Handling Services Ltd
    (1974) EA 75
  • Toshika Construction Company Ltd vs Harambee Cooperative Savings & Another
    (2019) eKRL
Jurisdiction invoked
Inherent power of the court under Section 3A of the Civil Procedure Act; Order 10 Rule 11 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muiruri v Mwangi & 2 others (Environment & Land Case E002 of 2021) [2024] KEELC 223 (KLR)", Case Analysis (2024). ELCA No. E024 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/223/eng@2024-01-25

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