Mwaniki v Nzomo (Environment & Land Case 70 of 2008) [2024] KEELC 7161 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the firm of Kyalo, Muia & Company Advocates should be allowed to come on record for the defendant.
- 2.Whether there is sufficient cause for setting aside the exparte judgment herein.
Key legal issues
#Change of advocates after judgment
Leave granted for the new firm to come on record, as the respondent raised no objection.
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.
Setting aside exparte judgment for sufficient cause
Refused; inordinate unexplained delay and no demonstrated triable defence.
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.
Legal principles established
#- 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
#- 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.The defendant's notice of motion application dated 16th February 2024 dismissed with costs to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 9 Rule 9 and Order 12 Rule 7 of the Civil Procedure Rules
Relief refused
#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.
Costs
Application dismissed with costs to the plaintiff
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.
Therefore, the power to set aside exparte judgment is discretionary, and the court ought to exercise that discretion judiciously and not whimsically.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.