Jane Wambui Wangugi & another v Raphael Kinuthia Wainaina
The bottom line
#The Land Court in Thika allowed a new lawyer to take over the case but refused to undo a judgment the litigants had failed to follow up themselves.
What this practically means
#Executive summary
#Key legal issues
#Leave for incoming advocate post-judgment
Leave under Order 9 Rule 9 was granted as the Plaintiff raised no strong objection; the right to representation by counsel of choice serves fair hearing
Order 9 Rule 9 requires an order of court for change of advocate after judgment. The court treated the right to legal representation as a tenet of fair hearing, noted the Plaintiff advanced no strong objection, and allowed prayer (b) under Order 9 Rule 10.
Setting aside ex parte judgment
Application refused; the Applicants, though represented and having paid fees, failed to follow up their case and offered no cogent evidence of non-notification by their former Counsel
Under Order 12 Rule 7 the court exercises discretion guided by Shah v Mbogo. The Applicants were represented and paid filing fees but did not follow up a case pending since 2003. Courts should not blame counsel for all transgressions; litigants must show interest in their cases per Habo Agencies and Carla v Marelli.
Defective supporting affidavit sworn by a stranger
The defect was sufficient to strike out the motion, but the court considered it on merits in light of access to justice and fair hearing, while deploring the practice
The Respondent showed the Supporting Affidavit was sworn by a non-party. The court held this valid ground enough to strike out, yet entertained the motion on merits citing constitutional access to justice and fair hearing, noting Philip Kiarie Wangugi's authority and consent, and condemning such pleadings.
Legal principles established
#- The discretion to set aside ex parte judgments is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
- Litigants bear responsibility to follow up their cases even when represented by Counsel
Court orders
#- 1.Leave granted to the firm of Muiruri Cheserek & Co. Advocates to come on record in place of J.K Ngaruiya Advocates (prayer b)
- 2.The Application (save for prayer b) dismissed with costs to the Respondent
- Jurisdiction invoked
- Order 12 Rule 7 and Order 9 Rule 9 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Wambui Wangugi & another v Raphael Kinuthia Wainaina", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/966/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.