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ELCAllowedEnvironment & Land Case E002 of 2024· [2025] KEELC 574 (KLR)

Githui v Thiongo & 2 others (Environment & Land Case E002 of 2024) (Environment and Land) [2025] KEELC 574 (KLR)

Environment and Land Court
13 February 2025
2,374 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court gave a defendant a second chance to defend his case, but only after paying costs and promising to act fast.

What this practically means

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Executive summary

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The 1st Defendant applied by notice of motion dated 30th September 2024, under Order 51 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, to set aside the proceedings of 18th September 2024 so as to be given an opportunity to defend the suit. He explained that his former advocates, Rumba Kinuthia & Company Advocates, had filed only a memorandum of appearance and no defence despite his instructions, and that rendering judgment without his input would condemn him unheard. The Plaintiff opposed, arguing the application was not anchored on the correct provisions, that the proceedings were not ex parte since the Applicant had been present and declined an opportunity to cross-examine, that he had not explained an over-8-month delay in filing a defence, and that he had filed neither an affidavit of merit nor a draft defence raising triable issues. The Plaintiff relied on Shah v Mbogo and Omwoyo v African Highlands & Produce Co. Ltd, arguing the discretion should not underwrite ineptitude or sheer negligence. The court held that Order 51 and Sections 3 and 3A confer no jurisdiction for the prayers sought, citing the principle that inherent power cannot be invoked where the rules provide the procedure, and determined the matter under Order 12 Rule 7. Applying Shah v Mbogo and Muthaiga Road Trust Company Ltd, the court found the Applicant had shown sufficient cause and that denial of a hearing should be the last resort. It allowed the application: proceedings of 18th September 2024 were set aside, the Applicant was granted 14 days to file and serve a defence and comply with pretrial directions, was to pay thrown away costs of Kshs. 20,000/= within 14 days failing which the orders would lapse and judgment would proceed, and costs of the application were granted in the cause.

Key legal issues

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01

Whether the application was properly brought under Order 51 and Sections 3 and 3A of the Civil Procedure Act

Holding

The court held that those provisions do not confer jurisdiction to grant the prayers sought, but proceeded to consider the application under Order 12 Rule 7 which empowers the court to set aside ex parte proceedings.

Reasoning

The application was expressly founded on Order 51 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act. The court noted these provisions do not give jurisdiction over setting aside proceedings, citing the principle that inherent jurisdiction cannot be invoked where rules provide the procedure. It then invoked Order 12 Rule 7, which grants discretion to set aside proceedings taken in default, and determined the matter on that footing.

p. 3
02

Whether the Applicant demonstrated sufficient cause for setting aside the proceedings of 18th September 2024

Holding

The court found that the Applicant, who had been represented by Counsel, had shown sufficient cause and should be allowed to defend the suit in the interest of justice.

Reasoning

Weighing the principles in Shah v Mbogo and Muthaiga Road Trust Company Ltd, the court acknowledged that a mistake by an advocate is not in every case a ground for setting aside orders, but emphasized that the main concern is to do justice and that the discretion is guarded against injustice and hardship from inadvertence or excusable mistake. Denial of the right to be heard should be the last resort, and the Applicant's explanation of his counsel's failure to file a defence was accepted as sufficient cause.

p. 5
03

The legal threshold for exercising discretion to set aside ex parte proceedings

Holding

The threshold is whether the Applicant has demonstrated sufficient cause warranting setting aside of the ex parte proceedings.

Reasoning

Relying on Shah v Mbogo and Another [1967] EA 116, the court framed the discretion as intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, but not designed to assist a person who has deliberately sought to obstruct or delay the course of justice. The court also distinguished the two situations arising in setting aside applications: want of service, and appearance having been entered so that the applicant must explain the failure to file a defence in time and show triable issues.

p. 4

Legal principles established

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  • The discretion to set aside ex parte proceedings is meant to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the course of justice.
  • The inherent power of the court cannot be invoked where the rules have provided the procedure to be followed.
  • Inherent jurisdiction is invoked only where there are no clear provisions anchoring the relief, or where invoking the rules would work an injustice.
  • In an application for setting aside, the court's main concern is to do justice to the parties and it will not fetter its wide discretion.
  • The court should not rush to remove a litigant from the seat of justice; denial of the right to be heard should be the last resort.

Court orders

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  1. 1.The Applicant shall be given an opportunity to defend the suit
  2. 2.The proceedings of 18th September 2024 are set aside
  3. 3.The Applicant shall file and serve his defence and comply with pretrial directions within 14 days
  4. 4.The Applicant shall pay thrown away costs of Kshs. 20,000/= to the Plaintiff within the next 14 days, failure of which the order will lapse and the court shall proceed with writing and delivery of judgment
  5. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of KenyaArticles 47 and 50

Cases cited (6)

  • Johnson Gacau Kibera v Lawrence Maina Mwangi
    [2020] eKLR
  • Shah v Mbogo and Another
    [1967] EA 116
  • Omwoyo v African Highlands & Produce Co. Ltd
    [2002] 1 KLR
  • Mumias Out growers Company (1998) Ltd v Mumias Sugar Company Ltd
    NRB HCCC No. 414 of 2008
  • Muchiri v Attorney General & 3 others
    (1991) KLR 516
  • Muthaiga Road Trust Company Ltd vs Five Continents Stationers Ltd & 25 Others
    (2003) KLR 714
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules (the court found these provisions did not confer jurisdiction to grant the prayers sought, and exercised the discretion under Order 12 Rule 7)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Githui v Thiongo & 2 others (Environment & Land Case E002 of 2024)  (Environment and Land) [2025] KEELC 574 (KLR)", Case Analysis (2025). Environment & Land Case E002 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/574/eng@2025-02-13

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