Munyua v Valley Creek Limited (Environment & Land Case 361 of 2019) [2024] KEELC 3747 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to set aside a land judgment, finding the defendant was represented all along and simply failed to show up.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 15.12.2021 was regular
The judgment was regular because the defendants were actively represented from the suit's inception by two firms of advocates and the hearing date was taken in their counsel's presence
The court traced the record: Munene & Company filed a preliminary objection, defence and counterclaim and trial bundle; a notice of change of advocate showed Njue Muriithi advocates taking over on 11.11.2013. The hearing date of 3.11.2021 had been given earlier on 1.7.2021 in the presence of counsel for all parties. The claim of ignorance of counsel was therefore unfounded.
Whether sufficient cause was shown to set aside the judgment
No sufficient cause was shown; the defendants' conduct showed deliberate inaction and lack of candour, disentitling them to the discretion
The defendants had been indulged by the court, including a final adjournment on 1.7.2021 with costs, yet failed to attend the hearing. Their denunciation of their own advocates without justification signalled non-candour. Restarting a case close to a decade old would prejudice the plaintiff and the administration of justice.
Legal principles established
#- The discretion to set aside an ex parte judgment exists to avoid injustice from accident, inadvertence or excusable error, but not to assist a party who deliberately obstructs or delays the cause of justice
- A regular ex parte judgment may be set aside at the court's unfettered discretion on such terms as are just; an irregular judgment must be set aside ex debito justitiae
- A defendant seeking setting aside must demonstrate sufficient cause preventing attendance at the hearing
Court orders
#- 1.The application dated 26.1.2024 is found to have no merits and is dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Inherent discretion to set aside ex parte judgment/orders under civil procedure law; suit transferred from the High Court (Case No. 599 of 2012) to the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyua v Valley Creek Limited (Environment & Land Case 361 of 2019) [2024] KEELC 3747 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3747/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.