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ELCPartially AllowedNot stated in judgment

Mwaniki v Nzomo (Environment & Land Case 70 of 2008) [2024] KEELC 7161 (KLR)

Environment and Land Court (Machakos) - court name not expressly stated; delivered at Machakos
30 October 2024
1,289 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 refused to overturn a five-year-old default judgment because the defendant delayed and showed no real defence to the property claim.

What this practically means

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Executive summary

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The defendant, against whom exparte judgment had been entered on 4th October 2019 in a land dispute, brought a notice of motion dated 16th February 2024 seeking leave for the firm of Kyalo, Muia & Company Advocates to come on record and for setting aside of the exparte judgment and consequential orders. She blamed her previous advocates for non-attendance and non-communication, claimed she had been condemned unheard, alleged she was bedridden, and asserted a triable defence, having learned of the matter's status only upon being served with eviction orders by Eastern (K) Auctioneers. The plaintiff opposed, citing the firm's improper filing, a five-year delay, the defendant's prior participation in eviction proceedings, and the absence of a draft defence. The court framed two issues. On the first, it allowed leave for the incoming firm, no objection having been raised, holding the right to counsel of choice aligned to fair hearing. On the second, it declined to set aside the judgment: the application came over four years after judgment and over two years after an eviction order made on 30th July 2021 following a hearing at which the defendant filed a replying affidavit, demonstrating her awareness of the proceedings. The medical evidence covered only January to March 2019, leaving the delay unexplained, and no legal or equitable interest in the suit property was disclosed to show a triable defence. The application was accordingly dismissed with costs to the plaintiff, save for the grant of leave to the new advocates.

Questions the Court framed

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

  1. 1.Whether the firm of Kyalo, Muia & Company Advocates should be allowed to come on record for the defendant.
  2. 2.Whether there is sufficient cause for setting aside the exparte judgment herein.

Key legal issues

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01

Change of advocates after judgment

Holding

Leave granted for the new firm to come on record, as the respondent raised no objection.

Reasoning

Order 9 Rule 9 confers jurisdiction to grant leave to a new advocate where the party was previously represented until judgment was entered. The right to an advocate of choice is aligned to the constitutional right to fair hearing. No objection was raised by the respondent to the substitution, so the prayer was allowed.

p. 2
02

Setting aside exparte judgment for sufficient cause

Holding

Refused; inordinate unexplained delay and no demonstrated triable defence.

Reasoning

Judgment was delivered on 4th October 2019 and the application was filed only on 22nd February 2024, after service of eviction orders. The medical evidence covered only January to March 2019, so no explanation existed for the delay. The defendant also showed awareness of proceedings, having filed a replying affidavit to the eviction application, and disclosed no legal or equitable interest supporting a triable defence.

p. 3

Legal principles established

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  • The power to set aside an exparte judgment is discretionary and must be exercised judiciously.
  • A party is entitled to an advocate of his choice, a right aligned to the constitutional right to fair hearing, and leave under Order 9 Rule 9 should be granted where unopposed.

Court orders

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  1. 1.Leave granted to the firm of Kyalo, Muia & Company Advocates to come on record for the defendant in place of Musyoka Kimeu & Company Advocates
  2. 2.The defendant's notice of motion application dated 16th February 2024 dismissed with costs to the plaintiff

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 9 Rule 9 and Order 12 Rule 7 of the Civil Procedure Rules

Relief refused

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Setting aside of the exparte judgment and consequential orders

Inordinate unexplained delay of over four years since judgment, no evidence defendant was bedridden after March 2019, and no triable defence demonstrated as no legal or equitable interest in the suit property was shown.

p. 3

Costs

Application dismissed with costs to the plaintiff

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.

Therefore, the power to set aside exparte judgment is discretionary, and the court ought to exercise that discretion judiciously and not whimsically.
p. 2Discretion to set aside exparte judgment
In the premises, I am not convinced that the defendant deserves orders for setting aside the judgment herein. Save that the firm of Kyalo, Muia & Company Advocates has been granted leave to come on record in this matter for and on behalf of the defendant, the defendant's application dated 16th February 2024 is hereby dismissed with costs to the plaintifi.
p. 3Disposition

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, "Mwaniki v Nzomo (Environment & Land Case 70 of 2008) [2024] KEELC 7161 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7161/eng@2024-10-30

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