Muriithi v Njogu & 6 others (Civil Appeal E069 of 2021) [2025] KECA 1426 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reopen a land judgment lost by default, ruling that clients must follow their own cases even when lawyers are at fault.
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 learned Judge erred in declining to set aside the ex parte proceedings and judgment rendered on 20th September 2019
Key legal issues
#Whether the ELC erred in refusing to set aside the ex parte proceedings and judgment despite the principle that mistakes of counsel should not be visited on an innocent litigant
The ELC properly exercised its discretion. Although mistakes of counsel should ordinarily not be visited on an innocent litigant, the appellant gave no satisfactory explanation for the one-year delay, adduced no evidence of her claimed illness, and showed a lack of diligence by never attending court or following up her case.
The court reviewed the settled principles: appellate interference with discretion requires misdirection or failure to consider relevant matters. It found the hearing date was taken by consent, the appellant had previously failed to comply with pre-trial directions, and the illness claim was raised only in submissions, which are not evidence. Authorities establish that a litigant must demonstrate interest and diligence even when represented; blaming counsel's inaction is not an excusable mistake. The judge considered all relevant factors, including inordinate delay and absence of medical records or an affidavit from former counsel.
Legal principles established
#- Appellate interference with the exercise of discretion is limited to instances of misdirection, consideration of irrelevant matters, or failure to consider relevant ones.
- A litigant bears responsibility to follow up their case and cannot simply blame the advocate on record; mere blame of counsel's inaction is not an excusable mistake entitling the setting aside of an ex parte judgment.
- Written submissions are not evidence; a party must establish facts such as illness by affidavit evidence, not by submissions.
- The court's indulgence of determining cases on merit is unavailable to indolent litigants who fail to follow up on the conduct of their cases.
Court orders
#- 1.The appeal is dismissed
- 2.Each party shall bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court
- Kerugoya ELC Case (number not stated)
- Jurisdiction invoked
- First appellate appeal from the Environment and Land Court (article 164 of the Constitution implied; not expressly stated in the judgment)
Relief refused
#Setting aside the ex parte judgment and the trial court's ruling, and substitution with judgment in favour of the appellant declaring her absolute proprietor of the suit properties
The appellant failed to give a satisfactory explanation for the inordinate delay of over one year in seeking to set aside the judgment, provided no evidence (such as medical records or an affidavit from former counsel) supporting her illness claim, and demonstrated general lack of diligence; the trial judge correctly exercised her discretion and there was no misdirection
Costs
Each party shall bear their own costs of the appeal
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.
Given the familial nature of the dispute, we direct that each party shall bear their own costs of the appeal.
we find no justification to disturb the findings of the trial court. The appeal is devoid of merit and is hereby dismissed.
While the Court appreciates that litigation should, where possible, be determined on merit, such indulgence is unavailable to litigants who are indolent or fail to follow up on the conduct of their cases.
It is trite law that submissions are not evidence.
Courts have always emphasized that the parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.
appellate interference with the exercise of discretion is limited to instances of misdirection, consideration of irrelevant matters, or failure to consider relevant ones.
Issues in the judgment
#The passage quoted from Mwangi v Kariuki appears garbled/corrupted in the judgment, with text from an unrelated sentence interpolated mid-quote.
The respondents are described as 'the 1st to 7th respondents' but only six names are listed.
Grounds of appeal reference the trial court directing transfer of Ngariama/Thirikwa/1524 to Geofirey Muriuki Njogu, but earlier the suit describes that parcel as being held for the 4th respondent whose name is not confirmed as Geofirey Muriuki Njogu in the parties listed.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kipyegon v Chumo & 3 others (Environment and Land Case 10 of 2020) [2026] KEELC 3404 (KLR)[2026] KEELC 3404 (KLR)4 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Muriithi v Njogu & 6 others (Civil Appeal E069 of 2021) [2025] KECA 1426 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1426/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.