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ELCDismissedELC Appeal No. 74 of 2016 (Formerly Civil Appeal No. 480 of 2014)

Real Management Services Limited & another v International Partnership Services (E.A) Ltd [2019] KEELC 3113 (KLR)

Environment and Land Court
9 May 2019
2,580 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that vague excuses like a missed diary entry will not save you from a default judgment unless backed by solid, sworn evidence.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nairobi against a ruling of Hon. S. Atambo (Ms) delivered on 24th October 2014 in Nairobi CMCC No. 7241 of 2013, by which the magistrate dismissed the appellants' application to set aside an ex parte judgment on admission of Kshs.500,000 entered on 11th June 2014, and to reinstate the respondent's application of 6th May 2014 for inter partes hearing. The appellants, suing through their advocate Sylvester Kibera Maina, attributed their non-attendance to an office assistant's failure to diarise the hearing date, and contended their defence raised triable issues and that they were condemned unheard. The respondent maintained the explanation was unconvincing, that personal service of the court order was regular, and that the defence consisted of admissions raising no triable issues. Komingoi J framed five issues. The court held that the 'sufficient cause' explanation was unconvincing and implausible because the office assistant allegedly responsible did not swear an affidavit; that the magistrate therefore exercised her discretion judiciously in declining to set aside the judgment; and that the statement of defence raised no triable issues. Applying the Mbogo v Shah standard, the court found no basis for appellate interference. The appeal was dismissed with costs to the respondent on 9th May 2019.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether in the application dated 30th July 2014 the appellants have reasonably justified their failure to attend court on 11th June 2014 and failure to file a replying affidavit thereto
  2. 2.Whether the honourable learned magistrate exercised her discretion judiciously in declining to set aside the judgment and decree granted on 11th June 2014
  3. 3.Whether service of a court order issued on 27th June 2014 to the appellants personally on 30th June 2014 was regular and lawful
  4. 4.Whether the honourable learned magistrate was justified in holding that the appellants' statement of defence did not raise any triable issues
  5. 5.Who bears the costs of this appeal

Key legal issues

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01

Sufficiency of explanation for failure to attend court

Holding

The appellants' explanation that an office assistant failed to diarise the matter was not convincing or plausible in the absence of an affidavit from that assistant

Reasoning

The advocate's affidavit blamed an office assistant for failing to diarise the hearing date, but the assistant did not swear an affidavit to explain the failure. Applying the 'sufficient cause' standard, the explanation left gaps and doubts, so the magistrate could not be faulted for rejecting it.

p. 3
02

Whether the magistrate exercised her discretion judiciously

Holding

Yes - the magistrate exercised her discretion judiciously in declining to set aside the ex parte judgment since no sufficient reasons were advanced

Reasoning

Guided by the Mbogo v Shah standard, the appellate court found the magistrate took into account all relevant matters and none irrelevant. Since no sufficient reasons were placed before her to justify the non-attendance, her refusal to set aside the judgment stood.

p. 4
03

Whether the defence raised triable issues

Holding

The statement of defence raised no triable issues

Reasoning

The court perused the defence and found it disclosed no triable issues; the respondent maintained it was owed money and had incurred expenses moving godowns at the appellants' request. The magistrate was therefore justified in holding the defence meritless for purposes of setting aside.

p. 4

Legal principles established

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  • An appellate court will not interfere with the exercise of the trial judge's discretion unless the judge misdirected himself or the decision is clearly wrong and has resulted in injustice
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful
  • The discretion to set aside ex parte judgments is intended to avoid injustice from excusable mistake, not to assist those who deliberately obstruct or delay justice

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Nairobi
CMCC No. 7241 of 2013
Jurisdiction invoked
First appellate jurisdiction over subordinate court rulings

Relief refused

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Setting aside of the subordinate court's ruling and allowance of the appeal

The magistrate's discretion was exercised judiciously; the explanation for non-attendance was unconvincing and the defence raised no triable issues

p. 4

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, I find no merit in this appeal and the same is dismissed with costs to the respondent.
p. 4final orders - dismissal of appeal
I find that the honourable learned magistrate exercised her discretion judiciously in declining to set aside the judgment and decree granted on 11th June 2014.
p. 4exercise of discretion
Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful.
p. 3standard for sufficient cause
the court will not interfere with the exercise of the trial judge's discretion unless it is satisfied that the judge in exercising his discretion misdirected himself in some matters and as a result arrived at a wrong decision
p. 4appellate interference with discretion

Issues in the judgment

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minor

The AG v Law Society of Kenya appeal number is cited inconsistently as No. 133 of 2016 in the respondent's submissions and No.133 of 2011 in the court's discussion

minor

The appellants' application is referred to inconsistently as dated 30th July 2014 and 30th July 2018

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, "Real Management Services Limited & another v International Partnership Services (E.A) Ltd [2019] KEELC 3113 (KLR)", Case Analysis (2019). ELC Appeal No. 74 of 2016 (Formerly Civil Appeal No. 480 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3113/eng@2019-05-09

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