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ELCDismissedNot stated in the judgment· [2024] KEELC 3747 (KLR)

Munyua v Valley Creek Limited (Environment & Land Case 361 of 2019) [2024] KEELC 3747 (KLR)

Environment and Land Court
24 April 2024
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The defendant filed a Notice of Motion dated 26.1.2024 seeking leave for a new firm of advocates to come on record, a stay of an order of 8.1.2024 finding the defendant in contempt of court orders, and setting aside of the judgment delivered on 15.12.2021 so as to defend the suit. Eunice Njeri averred that the defendants were never served with the suit, never appointed Njue Muriithi advocates on record, and that the plaintiff never paid the full purchase price, so they had a plausible defence. The new counsel was allowed on record by consent, leaving the questions whether the judgment of 15.12.2021 and the order of 31.10.2023 should be set aside. Reviewing the file, the court found the suit, filed in the High Court as Case No. 599 of 2012 and transferred to the Environment and Land Court in 2019, had been actively defended by Munene & Company and later Njue Muriithi advocates, and that the hearing date of 3.11.2021 was taken in counsel's presence on 1.7.2021. The judgment was therefore regular. The defendants' denunciation of their own advocates without justification showed lack of candour; their inaction had driven them from the seat of justice, and restarting a decade-old suit would prejudice the plaintiff and the administration of justice. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the judgment of 15.12.2021 was regular

Holding

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

Reasoning

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.

p. 2
02

Whether sufficient cause was shown to set aside the judgment

Holding

No sufficient cause was shown; the defendants' conduct showed deliberate inaction and lack of candour, disentitling them to the discretion

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 26.1.2024 is found to have no merits and is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Cases cited (6)

  • Jomo Kenyatta University of Agriculture and Technology V Musa Ezekiel Oebal
    [2014] eKLR CA 217/2009
  • Shah V Mbogo & Another
    (1967) EA 116
  • Southern Credit Banking Corporation Ltd V Johah Stephen Nganga
    (2006) eKLR
  • Wachira Karani v Bildad Wachira
    [2016] eKLR
  • Moschion v Mwangi
    [2023] KEELC 17144 (KLR)
  • Nginyanga Kavole vs. Mailu Gideon
    (2019) eKLR
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

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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, "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.