[2011] KEHC 2643 (KLR)
The court found that the failure to file a defence was due to an inadvertent mistake by the applicant's counsel, who took responsibility for the omission. Although there was a delay in bringing the application to set aside the interlocutory judgment, the court held that the blame lay with the advocate and not the...
Source-derived case information.
- Citation
- [2011] KEHC 2643 (KLR)
- Parties
- Plaintiff: Beatrice Gathoni Mukuha; Defendant: Christopher Kamande Mbugua; Defendant: Commissioner of Lands; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 395 of 2009
- Procedural Posture
- Civil Suit / Application to Set Aside Interlocutory Judgment
- Outcome
- Application allowed; interlocutory judgment set aside.
- Judges
- GG Okwengu
- Legal Topics
- Setting Aside Judgment, Inadvertent Mistake by Counsel, Delay in Filing Defence, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Gathoni Mukuha
Plaintiff
Christopher Kamande Mbugua
Defendant
Commissioner of Lands
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Suit / Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered against the applicant should be set aside due to counsel's inadvertent mistake.
- 2 Whether the delay in filing the application to set aside judgment is excusable.
- 3 Whether the applicant should be allowed to defend the suit on merits in a land ownership dispute.
Ratio Decidendi
The court found that the failure to file a defence was due to an inadvertent mistake by the applicant's counsel, who took responsibility for the omission. Although there was a delay in bringing the application to set aside the interlocutory judgment, the court held that the blame lay with the advocate and not the applicant. Given the emotive and substantive nature of land disputes, the court determined that it was in the interest of justice to allow the application, set aside the interlocutory judgment, and permit the applicant to file a defence so that the matter could be heard and determined on its merits. The applicant was ordered to file and serve the defence within seven days and pay...
Court Disposition
Application allowed; interlocutory judgment set aside.
Orders
- The interlocutory judgment dated 15th February, 2010 is set aside.
- The applicant shall file and serve the defence within 7 days from the date of this ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.395 OF 2009
BEATRICE GATHONI MUKUHA…........................……PLAINTIFF/RESPONDENT
VERSUS
CHRISTOPHER KAMANDE…….................…...1ST DEFENDANT/APPLICANT
COMMISSIONER OF LANDS….............……………………..2ND DEFENDANT
THE ATTORNEY GENERAL……...............…………………..3RD DEFENDANT
R U L I N G
1. Christopher Kamande Mbugua, (hereinafter referred to as the applicant), is the 1st defendant in this suit. He has come to this court by way of chamber summons under Order 9B Rule 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking to have the interlocutory judgment which was entered against him on 15th February, 2010 set aside. The applicant explains that the failure to file the defence was an error on the part of his counsel. He pleads that the error should not be visited upon.
2. The applicant’s advocate one Geoffrey Maina has sworn an affidavit in support of the application. The advocate explains that although he was served with a plaint and summons to enter appearance, he was preoccupied with the interlocutory application which was also filed at the same time. Therefore, the advocate overlooked the filing of the defence. The applicant pleads that the suit herein relates to land and therefore it is in the interest of substantive justice that the applicant be given an opportunity to be heard.
3. The plaintiff/respondent objects to the application contending that the same lacks merit. The respondent points out that the applicant became aware of the interlocutory judgment about 5 months ago. Therefore there was inordinate delay in filing the current application.
4. I have given due consideration to this application. It is not disputed that the applicant was duly served with summons to enter appearance. Although the applicant did not file any appearance, his advocate did file his notice of appointment on 26th August, 2009. However, no defence was filed. The applicant’s advocate has taken responsibility for the failure to file the defence in time.
5. Looking at the proceedings it is evident that the applicant entrusted his advocate with the conduct of the proceedings. It is further evident from the applicant’s replying affidavit filed in response to the interlocutory application, that the applicant disputed the plaintiff’s claim to the suit property, maintaining that he i.e. the applicant purchased the property from the former owner.
6. This is a case where there was clearly an inadvertent mistake made by counsel, which mistake should not be visited upon the applicant. There was delay in filing the application for setting aside the interlocutory judgment as the applicant’s advocate was informed about the judgment in May 2010. The advocate has not explained the delay. That notwithstanding, once again the blame lies with the applicant’s counsel, who was informed of the judgment. It is clear that this suit involves a dispute over ownership of land which is a very emotive issue. The applicant is taking great risk by relying on an advocate who does not appear to be very organized.
7. Nonetheless, in the light of the above circumstances, it is only fair and just that the application for setting aside the interlocutory judgment is allowed so that the suit can be heard and determined on merit. I therefore allow the application, set aside the interlocutory judgment dated 15th February, 2010. The applicant shall file and serve the defence within 7 days from today. The applicant shall further pay all thrown away costs and costs of this application to the plaintiff/respondent.
Orders accordingly.
Dated and delivered this 23rd day of May, 2011
H. M. OKWENGU
JUDGE
In the presence of: -
Kabaiko H/B for Mrs Wamaitha for the plaintiff/respondent
Maina for the 1st defendant/applicant
B. Kosgei - Court clerk