Njagi Kanyunguti Alias Karingi Kanyunguti & 4 Others v David Njeru Njogu
The bottom line
#Kenya's Court of Appeal refused to undo a judgment won in a party's absence, because the absent party and their lawyer sat on the case for years without explanation.
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 Court of Appeal should interfere with the High Court's discretionary refusal to set aside an ex parte judgment
- 2.Whether the application to set aside was defective for being brought under the wrong provisions of the Civil Procedure Rules
- 3.Whether the appellants and their former advocate showed sufficient cause for failing to attend the hearing
Key legal issues
#Interference with discretionary decisions on appeal
The Court declined to interfere; the material showed the appellants were undeserving of the discretion being exercised in their favour despite the judge's failure to assign full reasons
Applying Mbogo v Shah, the Court asked whether the superior court was clearly wrong. Although the judge did not assign full reasons, the record showed the appellants and their advocate were not diligent and had delayed the course of justice, so no basis for interference existed.
Correct procedural provision for setting aside an ex parte judgment
The application was incurably defective as it was brought under O. IX A rule 10 and O. XXI rule 25 instead of O. IX B rule 8, but the Court nonetheless considered the appeal on the merits
The Court observed that neither provision cited empowers a court to set aside a judgment entered after an ex parte hearing; that power lies under O. IX B rule 8. The provisions are not interchangeable, but since the point was not raised below, the Court considered the merits.
Advocate's failure to attend hearing and ceased practice
The erstwhile advocate's explanation was an afterthought; he failed to comply with O. III rule 12 on ceasing to act, and the appellants failed to explain their silence and inaction
L. Njagi ceased practice in 1987 but never moved the court under O. III rule 12, did not explain steps taken between 1987 and July 1989, and the appellants did not explain their inaction prior to December 1989, indicating deliberate delay.
Legal principles established
#- An appellate court will not interfere with a lower court's exercise of discretion unless the decision is clearly wrong due to misdirection, consideration of wrong matters, or failure to consider relevant matters
- O. IX A rule 10 and O. IX B rule 8 of the Civil Procedure Rules are not interchangeable; the power to set aside a judgment entered after an ex parte hearing is donated by O. IX B rule 8
- A court will set aside a judgment only to avoid injustice from accident, inadvertence or excusable mistake, and will not assist a party who deliberately obstructed or delayed justice
Court orders
#- 1.Appeal dismissed
- 2.Costs to the respondent assessed at shs.10,000, payable by the appellants within 30 days, in default execution to issue
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- H.C.C.C. No. 2101 of 1986
- Jurisdiction invoked
- First appellate jurisdiction over exercise of discretionary jurisdiction of the High Court under the Civil Procedure Rules (O. IX A rule 10 / O. IX B rule 8)
Relief refused
#Setting aside of the ex parte judgment and consequential orders
Appellants and their advocate were not diligent and were bent on delaying the course of justice; they failed to show sufficient cause
Costs
Costs to the respondent assessed at shs.10,000 to be paid by the appellants within 30 days and in default execution to issue
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.
this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong
The power to set aside a judgment entered pursuant to an ex parte hearing of a suit is donated by O. IX B rule 8 of the Civil Procedure Rules.
will not assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice
This appeal, therefore, fails and is dismissed with costs to the respondent which we assess at shs.10,000 to be paid by the appellants within 30 days and in default execution to issue.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njagi Kanyunguti Alias Karingi Kanyunguti & 4 Others v David Njeru Njogu", Case Analysis (1997). Civil Appeal No. 181 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/421/eng@1997-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.