Evans v Kiswii (Environment & Land Case 42 of 2016) [2024] KEELC 328 (KLR)
The bottom line
#A Machakos court gave a landowner a second chance to defend his case, but only after paying Kshs. 160,000 within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Leave for incoming advocate after judgment
Leave granted; the right to change advocates is a constitutional right within the right to a fair hearing
Order 9 Rule 9 requires a court order for change of advocates after judgment. The court held that choice of advocate is encompassed in the right to a fair hearing and, being satisfied the applicant had properly invoked the provision, allowed the firm of R. K. Mutua to come on record.
Regularity of the judgment
The judgment was regular because the defendant was served on numerous occasions and did not attend for three years
The plaintiff demonstrated service of hearing notices, submissions, mention, taxation and judgment notices without any appearance by the defence. Over roughly ten court appearances between 2020 and 2023 the defendant never attended, so blaming the advocate was a feeble excuse and the judgment was regular.
Triable defence
The defence raises a triable issue on ownership of the suit property as between two purchasers from the same vendor
The defence alleged purchase of the suit property from Mavoko Land Development Company Limited at full price. Since that vendor also allegedly sold to the plaintiff, the court found a genuine dispute as to which party the vendor sold the property, justifying setting aside despite inordinate delay.
Legal principles established
#- A regular judgment will not usually be set aside unless the court is satisfied there is a triable issue
- Denying a party a hearing should be the last resort of the court
- Change of advocates after judgment requires an order of the court under Order 9 Rule 9
Court orders
#- 1.Leave granted for the firm of R. K. Mutua & Company Advocates to come on record for the defendant in place of L. M. Wambua & Company Advocates
- 2.Judgment entered on 4th May 2022 set aside on condition that the defendant pays thrown away costs of Kshs. 150,000/- to the plaintiff within 30 days, failing which the judgment shall revert
- 3.Costs of the application assessed at Kshs. 10,000/- to be borne by the defendant and paid within 30 days
- 4.Matter to be heard expeditiously on priority basis
- Jurisdiction invoked
- Order 9 Rule 9 and Order 12 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans v Kiswii (Environment & Land Case 42 of 2016) [2024] KEELC 328 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/328/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.