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ELCDismissedEnvironment & Land Case 527 of 2013· [2024] KEELC 3382 (KLR)

Kariuki v Owino (Environment & Land Case 527 of 2013) [2024] KEELC 3382 (KLR)

Environment and Land Court
24 April 2024
LMLucy N. Mbugua
709 words in judgment
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The bottom line

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A Kenyan court refused to overturn a land judgment against a defendant who skipped his own hearing despite being properly served and represented.

What this practically means

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Executive summary

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Judgment had been entered for the Plaintiff on October 5, 2021. The Defendant filed a Notice of Motion dated April 20, 2022 seeking to set aside that judgment and obtain a retrial, contending that he only later learned of the judgment, that his advocate never updated him on the progress of the case, and that he was absent when judgment was delivered. The Plaintiff opposed through a preliminary objection dated September 26, 2023 arguing res judicata, relying on an earlier application dated October 13, 2022 that had been determined on March 9, 2023. The Defendant responded that the earlier application concerned an injunction, not setting aside judgment. The court framed two issues: the merit of the preliminary objection and whether the threshold for setting aside judgment was met. On the first, applying Section 7 of the Civil Procedure Act, the court found the two applications raised different matters (injunction versus setting aside) and dismissed the preliminary objection. On the second, the court held the Defendant was properly served, entered appearance, filed a defence and participated through counsel; neither he nor his counsel attended the hearing, and counsel later appeared, filed submissions and never sought to set aside the proceedings. Relying on Anjeli Limited v Kenga Simba, the court held a properly served party cannot complain of being denied a hearing. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Res judicata as a bar to a set-aside application

Holding

Res judicata did not apply because the earlier application dated October 13, 2022 concerned an injunction, whereas the instant application seeks setting aside of judgment; the preliminary objection failed

Reasoning

Applying Section 7 of the Civil Procedure Act, the court compared the two applications. The earlier application sought an injunction restraining the plaintiff from interfering with Plot No. C4-164 Kayole, while the present application seeks to set aside judgment. Since the matters directly and substantially in issue differ, the doctrine of res judicata is not attracted and the preliminary objection lacks merit.

p. 2
02

Discretion to set aside judgment where a party was absent at hearing

Holding

The court's discretion to set aside judgment was not exercised in the Defendant's favour because he was properly served, participated in the suit through counsel, and his counsel later filed submissions without seeking to set aside the proceedings

Reasoning

The Defendant was properly served with pleadings, entered appearance and filed a statement of defence. On the hearing date of February 25, 2020 neither he nor his counsel attended, and the court was satisfied service was proper. His counsel later appeared on May 12, 2021, filed submissions but never requested setting aside of the proceedings, so the Defendant was not denied a hearing.

p. 2

Legal principles established

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  • A party properly served who fails to attend court cannot blame anyone but himself when judgment is entered against him

Court orders

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  1. 1.Plaintiff's preliminary objection dated September 26, 2023 dismissed (no merit)
  2. 2.Defendant's Notice of Motion application dated April 20, 2022 dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (1)

  • Anjeli Limited v Kenga Simba & 12 others; Chengo Omar & 19 others (Intended Interested Parties)
    [2021] eKLR
Jurisdiction invoked
Original jurisdiction; inherent discretion to set aside judgment under the Civil Procedure Act regime

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, "Kariuki v Owino (Environment & Land Case 527 of 2013) [2024] KEELC 3382 (KLR)", Case Analysis (2024). Environment & Land Case 527 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3382/eng@2024-04-24

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