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ELCPartially AllowedNot stated in judgment· [2024] KEELC 7161 (KLR)

Mwaniki v Nzomo (Environment & Land Case 70 of 2008) [2024] KEELC 7161 (KLR)

Environment and Land Court (Machakos) - court name not expressly stated; delivered at Machakos
30 October 2024
ANA. Nyukuri
1,289 words in judgment
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The bottom line

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A Kenyan land court refused to overturn a five-year-old default judgment because the defendant delayed and showed no real defence to the property claim.

What this practically means

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Executive summary

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The defendant, against whom exparte judgment had been entered on 4th October 2019 in a land dispute, brought a notice of motion dated 16th February 2024 seeking leave for the firm of Kyalo, Muia & Company Advocates to come on record and for setting aside of the exparte judgment and consequential orders. She blamed her previous advocates for non-attendance and non-communication, claimed she had been condemned unheard, alleged she was bedridden, and asserted a triable defence, having learned of the matter's status only upon being served with eviction orders by Eastern (K) Auctioneers. The plaintiff opposed, citing the firm's improper filing, a five-year delay, the defendant's prior participation in eviction proceedings, and the absence of a draft defence. The court framed two issues. On the first, it allowed leave for the incoming firm, no objection having been raised, holding the right to counsel of choice aligned to fair hearing. On the second, it declined to set aside the judgment: the application came over four years after judgment and over two years after an eviction order made on 30th July 2021 following a hearing at which the defendant filed a replying affidavit, demonstrating her awareness of the proceedings. The medical evidence covered only January to March 2019, leaving the delay unexplained, and no legal or equitable interest in the suit property was disclosed to show a triable defence. The application was accordingly dismissed with costs to the plaintiff, save for the grant of leave to the new advocates.

Key legal issues

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01

Change of advocates after judgment

Holding

Leave granted for the new firm to come on record, as the respondent raised no objection.

Reasoning

Order 9 Rule 9 confers jurisdiction to grant leave to a new advocate where the party was previously represented until judgment was entered. The right to an advocate of choice is aligned to the constitutional right to fair hearing. No objection was raised by the respondent to the substitution, so the prayer was allowed.

p. 2
02

Setting aside exparte judgment for sufficient cause

Holding

Refused; inordinate unexplained delay and no demonstrated triable defence.

Reasoning

Judgment was delivered on 4th October 2019 and the application was filed only on 22nd February 2024, after service of eviction orders. The medical evidence covered only January to March 2019, so no explanation existed for the delay. The defendant also showed awareness of proceedings, having filed a replying affidavit to the eviction application, and disclosed no legal or equitable interest supporting a triable defence.

p. 3

Legal principles established

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  • The power to set aside an exparte judgment is discretionary and must be exercised judiciously.
  • A party is entitled to an advocate of his choice, a right aligned to the constitutional right to fair hearing, and leave under Order 9 Rule 9 should be granted where unopposed.

Court orders

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  1. 1.Leave granted to the firm of Kyalo, Muia & Company Advocates to come on record for the defendant in place of Musyoka Kimeu & Company Advocates
  2. 2.The defendant's notice of motion application dated 16th February 2024 dismissed with costs to the plaintiff
Jurisdiction invoked
Order 9 Rule 9 and Order 12 Rule 7 of the Civil Procedure Rules

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, "Mwaniki v Nzomo (Environment & Land Case 70 of 2008) [2024] KEELC 7161 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7161/eng@2024-10-30

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