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ELCOtherNot stated in judgment· [2024] KEELC 3699 (KLR)

Giturwa & another v Cittimark Investment Limited (Environment & Land Case 23 of 2020) [2024] KEELC 3699 (KLR)

Environment and Land Court
8 May 2024
COCHRISTINE OCHIENG
2,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Defendant, by Notice of Motion dated 13th September 2023, sought leave for Kipng'etich & Kamonya Advocates to come on record after judgment, setting aside of the ex-parte judgment delivered on 1st November 2022, and leave to file its trial documents. It blamed its erstwhile advocates, a director's cancer diagnosis and death, and asserted triable issues. The Plaintiffs opposed, producing affidavits of service showing the Defendant and its advocates were several times served with mention, hearing and judgment notices, that the Defendant had stopped attending court since October 2020, and that it failed to serve a Third-Party Notice as directed in a ruling of 10th February 2022. They argued the application, filed eleven months after judgment and prompted only by service of a party-and-party bill of costs, was an inordinate-delay afterthought. The court framed three issues. It allowed the change of advocates under Order 9 Rule 9, the outgoing firm not objecting. On setting aside, applying Shah v Mbogo, Wachira Karani and CMC Holdings v Nzioki, it found the Defendant and its advocate had intentionally and severally failed to attend despite due service, had furnished no affidavit from the erstwhile advocate, and had not shown sufficient cause; blaming counsel was not a cure for all ills, and the application only sought to delay justice. The court dismissed the application except the prayer allowing the new advocates on record, with costs to the Plaintiffs.

Key legal issues

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01

Whether new advocates may come on record after judgment

Holding

Leave granted under Order 9 Rule 9, the erstwhile advocates having raised no objection

Reasoning

Order 9 Rule 9 requires an order of the court for a change of advocate after judgment. The outgoing advocates, Maina Muchiri & Co. Advocates, did not object to being replaced, and the new firm sought leave by application. The court accordingly allowed that prayer.

p. 3
02

Whether the ex-parte judgment of 1st November 2022 should be set aside

Holding

Refused; the Defendant failed to demonstrate sufficient cause

Reasoning

The court record showed the Defendant stopped attending court in October 2020, filed but failed to serve a Third-Party Notice as directed, and its advocate was several times served with mention, hearing and judgment notices, including by email, yet failed to attend. No affidavit from the erstwhile advocate was furnished, the date of learning of the judgment was not confirmed, and the application came only after service of the Bill of Costs, indicating delay and an intent to delay justice.

p. 5

Legal principles established

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  • The discretion to set aside an ex-parte judgment is intended to prevent injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays the course of justice
  • Sufficient cause for absence from court is a question of fact and the defendant must demonstrate that he was prevented from attending court by sufficient cause
  • Blaming an advocate is not a cure for all ills; cases belong to the parties, not the advocate

Court orders

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  1. 1.The law firm of messrs Kipngetich & Kamonya Advocates granted leave to come on record for the Defendant (prayer 2 of the Notice of Motion dated 13th September, 2023).
  2. 2.The rest of the prayers in the Notice of Motion dated 13th September, 2023, including setting aside the ex-parte judgment delivered on 1st November, 2022, dismissed.
  3. 3.Costs of the application to the Plaintiffs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 50

Cases cited (13)

  • Shah v Mbogo and Another
    [1967] EA 116
  • Elizabeth Kavere & Another v Lilian Atho & Another
    [2020] eKLR
  • James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another
    (2016) eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • S. K Tarwadi v Veronica Muehlemann
    (2019) eKLR
  • Haji Ahmed Hauliers t/a Hasa Hauliers v Highway Carriers Ltd
    (1982-88) 1 KAR
  • Belinda Muras & 6 Others v Amos Wainaina
    (1978)
  • Continental Butchery Limited v Nthiwa
    [1978] KLR
  • Phillip Chemwolo & Anor vs Augustine Kubede
    [1982-88] KLR 103
  • CMC Holdings Limited -vs- Nzioki
    [2004] 1 KLR 173
  • Nicholas K. Cheruiyot v Kenya Midland Sacco Limited
    (2021) eKLR
  • Josephat Oginda Sasia v Wycliffe Wabwile Kiiya
    (2022) eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Credit Reference Bureau Limited
    Civil Case No. 17 of 2014
Jurisdiction invoked
Order 10 Rule 11 and Order 9 Rule 9 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act (inherent jurisdiction)

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, "Giturwa & another v Cittimark Investment Limited (Environment & Land Case 23 of 2020) [2024] KEELC 3699 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3699/eng@2024-05-08

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