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ELCDismissedEnvironment and Land Appeal E017 of 2023· [2024] KEELC 1517 (KLR)
Shibende v Omukuyia (Environment and Land Appeal E017 of 2023) [2024] KEELC 1517 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#A Kakamega court dismissed an attempt to overturn an eviction judgment, confirming that repeatedly skipping court and blaming your lawyer rarely works.
What this practically means
#Executive summary
#The Respondent sued in the Subordinate Court as registered proprietor of E/Wanga/Lubinu/3135 seeking eviction of the Appellant. The Appellant, in an amended defence and counterclaim, claimed her late husband purchased 3 acres of the suit property in 1972 and asserted title by adverse possession, seeking cancellation of the Respondent's title. After several adjournments, the hearing proceeded on 2nd June 2022 in the Appellant's absence, and on 28th July 2022 the Subordinate Court (Hon. Thomas Obutu, SPM) granted eviction. The Appellant's Notice of Motion dated 17th October 2022 seeking setting aside was declined in a ruling of 9th March 2023, prompting this appeal. The appeal was canvassed by written submissions; the Appellant's submissions centred on a stay application already settled by consent. The court, D. O. Ohungo J, framed the sole issue as whether the Appellant was entitled to setting aside. Applying the discretionary-interference principles from Mombasa Cement Limited v Kitsao and the setting-aside principles in Mbogoh v Shah and James Kanyiita Nderitu, the court found the Appellant had received multiple adjournments, had been represented when the judgment date was fixed, and had offered no explanation for non-attendance nor plausible material blaming her advocates; the record even showed the judgment was delivered in her presence. The Magistrate's discretion was correctly exercised. The appeal was dismissed with costs to the Respondent on 21st March 2024.
Key legal issues
#01
Whether setting aside of the judgment should be granted
Holding
Appeal dismissed; the Magistrate correctly exercised discretion in refusing to set aside.
Reasoning
The Appellant was granted numerous adjournments, the hearing date was fixed by consent in the presence of her advocates, the judgment was delivered in her presence through counsel, and she offered no explanation for non-attendance nor material supporting claims of mistake of counsel. The record did not favour her and the discretion was properly exercised.
p. 3
Legal principles established
#- An appellate court will not interfere with exercise of discretion by an inferior court unless the decision is clearly wrong due to misdirection, consideration of wrong matters, or failure to consider relevant matters.
- Blame of one's advocates must have a scintilla of plausibility and be supported by material.
Court orders
#- 1.Appeal dismissed with costs to the Respondent
- On appeal from
- Subordinate Court
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court decisions (appeal against ruling declining to set aside judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shibende v Omukuyia (Environment and Land Appeal E017 of 2023) [2024] KEELC 1517 (KLR)", Case Analysis (2024). Environment and Land Appeal E017 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1517/eng@2024-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.