Githui v Thiongo & 2 others (Environment & Land Case E002 of 2024) (Environment and Land) [2025] KEELC 574 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application was properly brought under Order 51 and Sections 3 and 3A of the Civil Procedure Act
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.
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.
Whether the Applicant demonstrated sufficient cause for setting aside the proceedings of 18th September 2024
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.
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.
The legal threshold for exercising discretion to set aside ex parte proceedings
The threshold is whether the Applicant has demonstrated sufficient cause warranting setting aside of the ex parte proceedings.
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.
Legal principles established
#- 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
#- 1.The Applicant shall be given an opportunity to defend the suit
- 2.The proceedings of 18th September 2024 are set aside
- 3.The Applicant shall file and serve his defence and comply with pretrial directions within 14 days
- 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.Costs of the application shall be in the cause
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti-Corruption Commission v Sang & 3 others (Environment and Land Case 81 of 2018) [2026] KEELC 1389 (KLR)[2026] KEELC 1389 (KLR)5 Mar 2026applied
- Kairo & 2 others (Suing as the Administrators of the Estate of Simon Thuo Kairo - Deceased) v Aberdare Estates Limited (Enviromental and Land Originating Summons 6 of 2024) (Environment and Land) [2025] KEELC 3598 (KLR)[2025] KEELC 3598 (KLR)8 May 2025
Cite this brief
#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.