Njagi v Gitari (Environment and Land Appeal E006 of 2023) [2024] KEELC 4473 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment, ruling that a landowner deserves a full hearing where his defence raises real issues, even after missed deadlines.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court's discretion in dismissing the application to set aside the ex parte interlocutory judgment was exercised judicially
- 2.Whether the appellant had an excusable reason for failing to file his pleadings in time
- 3.Whether the notice of motion dated 14.04.2022 was filed by an advocate with capacity under Order 9 rule 9 of the Civil Procedure Rules
- 4.Whether triable issues were raised in the defence
Key legal issues
#Interference with trial court discretion on appeal
An appellate court will not interfere with trial court discretion unless there is an error in principle or the trial court was plainly wrong
The court framed the appeal as requiring determination whether the trial magistrate exercised discretion judicially. Interference is warranted only on error in principle or plain wrongness. Here the magistrate erred in rejecting the appellant's explanation of instructing an advocate and in ignoring triable issues raised in the defence on record.
Litigant not to be punished for advocate's mistake
A litigant should not be driven from the seat of justice for an advocate's blunder absent fraud or intention to overreach
The appellant appeared in court in person, took instructions from the court to pass to his advocate, and his pleadings were filed (albeit late) by an advocate, showing he had instructed one. The court held his reasons were reasonable and excusable and that justice required hearing the matter on merit given the draconian eviction orders sought.
Compliance with Order 9 rule 9 Civil Procedure Rules
A consent filed between outgoing and incoming advocate before the application satisfies Order 9 rule 9(b)
The trial court had held the set-aside application was filed by an advocate without capacity. The appellate court found a consent for the incoming advocate to come on record was filed on 11.04.2022, three days before the application of 14.04.2022, so rule 9 was complied with and the application was competently filed.
Triable issues on the face of the defence
Where a defence raises prima facie triable issues such as long occupation and fraudulent registration, ex parte judgment should be set aside
Relying on CMC Holdings Ltd v Nzioki, the court held the trial court should look afresh at the pleadings and set aside ex parte judgment if even one triable issue is raised. The defence raised occupation since the 1980s and fraud in the respondent's registration, issues requiring determination on merit with the appellant's input.
Legal principles established
#- The discretion to set aside ex parte judgment is wide and meant to avoid injustice, and where a defence raises triable issues it should be exercised in favour of hearing the matter on merit
Court orders
#- 1.The appeal is allowed
- 2.The ruling dated 02.03.2023 in Siakago PM's MCL & E Case No. 18 of 2021 is set aside
- 3.The notice of motion dated 14.04.2022 is allowed
- 4.The ex parte judgment of the lower court is set aside and the lower court is to hear the matter on its merits
- 5.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Siakago
- MCL & E Case No. 18 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court decision (Environment and Land Court Act)
Relief refused
#Costs of the appeal to the appellant
The respondent was not wholly to blame for the manner the proceedings were conducted
Costs
No order as to costs - each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal therefore succeeds and the ruling appealed against is hereby set aside. The notice of motion that gave rise to the ruling is hereby allowed, meaning that the judgement of the lower court is also set aside. The lower court should proceed to hear the matter on its merits.
In my view, the reasons given by the appellant for failing to comply with the court orders and file his pleadings in time were reasonable and, in the circumstances of this case, excusable.
In this day and age, the approach by the court to issues such as these should be liberal and broad, not unduly technical or procedurally constricting.
It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.
Issues in the judgment
#Judgment does not state the appeal's own case number or the parties' names
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njagi v Gitari (Environment and Land Appeal E006 of 2023) [2024] KEELC 4473 (KLR)", Case Analysis (2024). Not stated in judgment (Appeal from Siakago PM's MCL & E Case No. 18 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4473/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.