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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 328 (KLR)

Evans v Kiswii (Environment & Land Case 42 of 2016) [2024] KEELC 328 (KLR)

Environment and Land Court
31 January 2024
1,946 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a Notice of Motion dated 31st August 2023 by the defendant/judgment debtor seeking, principally, leave for the firm of R. K. Mutua & Company Advocates to come on record in place of L. M. Wambua & Company Advocates, and setting aside of an ex parte judgment entered on 4th May 2022. The plaintiff/decree holder opposed, contending the court was functus officio, that the defence counsel had been served repeatedly since 2020 without appearing, that the defendant was indolent for nearly two years after judgment, and that the incoming advocate had not complied with Order 9 Rule 9. The court framed two issues: leave for the change of advocates, and the threshold for setting aside ex parte judgment. On the first, it held that the liberty to change advocates is a constitutional right within the right to a fair hearing and allowed the change under Order 9 Rule 9. On the second, it applied Order 12 Rule 7 and the Chemwolo and Sebei authorities: although service on about ten occasions between 2020 and 2023 made the judgment regular and the defendant's blame of his advocate a feeble excuse, the defence - that the defendant had purchased the suit property from Mavoko Land Development Company Limited, the same vendor alleged to have sold to the plaintiff - raised a triable issue on ownership. Despite inordinate delay of one year and four months, the court set aside the judgment conditionally: thrown away costs of Kshs. 150,000/- and application costs of Kshs. 10,000/- payable within 30 days, failing which the judgment reverts, with the matter to be heard on priority basis.

Key legal issues

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01

Leave for incoming advocate after judgment

Holding

Leave granted; the right to change advocates is a constitutional right within the right to a fair hearing

Reasoning

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.

p. 3
02

Regularity of the judgment

Holding

The judgment was regular because the defendant was served on numerous occasions and did not attend for three years

Reasoning

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.

p. 4
03

Triable defence

Holding

The defence raises a triable issue on ownership of the suit property as between two purchasers from the same vendor

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the application assessed at Kshs. 10,000/- to be borne by the defendant and paid within 30 days
  4. 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

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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, "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.