[2019] KEELC 3750 (KLR)
The court found that the defendants' advocate failed to inform them of the application seeking to strike out the defence and did not attend the hearing, resulting in judgment being entered without the defendants' participation. The court held that the mistake of counsel should not be visited on the party, and that...
Source-derived case information.
- Citation
- [2019] KEELC 3750 (KLR)
- Parties
- Plaintiff: James Gichuru Mwangi; Plaintiff: Henry Mbogo Mwangi (Suing as the Legal Representative of the Estate of the late Ibrahim Mwangi Kamau); Defendant: Peter Gichuru Mwangi; Defendant: Ngugi Gitonga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 13 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Judgment
- Outcome
- application allowed; judgment set aside
- Judges
- A Ombwayo
- Legal Topics
- Setting Aside Judgment, Mistake of Counsel, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Gichuru Mwangi
Plaintiff
Henry Mbogo Mwangi (Suing as the Legal Representative of the Estate of the late Ibrahim Mwangi Kamau)
Plaintiff
Peter Gichuru Mwangi
Defendant
Ngugi Gitonga
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the judgment entered on 2.7.2018 should be set aside due to the defendants' advocate's failure to inform the defendants of the application and hearing date.
- 2 Whether the mistake of counsel should be visited upon the party.
- 3 Whether the defendants should be allowed to defend the application on its merits.
Ratio Decidendi
The court found that the defendants' advocate failed to inform them of the application seeking to strike out the defence and did not attend the hearing, resulting in judgment being entered without the defendants' participation. The court held that the mistake of counsel should not be visited on the party, and that the defendants should be given an opportunity to respond to the application on its merits. However, the court ordered that the defendants pay costs of Kshs.20,000 before filing their replying affidavits as a sanction for the procedural lapse. The judgment entered on 2.7.2018 was set aside, and the defendants were granted three days to respond to the application dated 13.5.2018.
Court Disposition
application allowed; judgment set aside
Orders
- Judgment entered on 2.07.2018 is set aside.
- Defendants granted 3 days to respond to application dated 13.5.2018.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 13 OF 2018
JAMES GICHURU MWANGI...................................................................1ST PLAINTIFF
HENRY MBOGO MWANGI.....................................................................2ND PLAINTIFF
(Suing as the Legal Representative of the Estate of the late IBRAHIM MWANGI KAMAU)
VERSUS
PETER GICHURU MWANGI...............................................................1ST DEFENDANT
NGUGI GITONGA................................................................................2ND DEFENDANT
RULING
The application before court is dated 7. 8.2018 and seeks for orders that the honourable court be pleased to set aside the judgment and/or decree dated 2. 7.2018 and issued on 17. 7.2018. It seeks orders that the applicant be able to defend the plaintiff’s application dated 13. 5.2018 on its merits. The application is based on grounds that the defendants’ advocate never informed them of the existence of the application. The defendants’ advocate failed to attend the hearing of the application and further failed to inform the applicant of the of the judgment. The defendants learnt of the striking out orders and judgment from the family of the 1st defendant hence instructed Mugeria, Lempaa & Kariuki Advocates to peruse the court file and discovered that application dated 13. 5.2018 had been allowed on 2. 7.2018 without being defended. The applicant blames their counsel on record at that time. The applicant believes that they have a very strong case.
In the replying affidavit, the respondents state that the defendants’ advocate was duly served with the application dated pm 15. 5.2018 on 28. 5.2018 before hearing. The hearing date was taken by consent. The defendants were served but never filed a reply. The defendants were given an opportunity to be heard but never took advantage of the same.
According to the plaintiff, the defendants have no defence for the plaintiff’s claim as they have admitted that the property belonged to the plaintiff’s deceased father.
I have considered the application and the replying affidavit and do find that indeed, the defendants’ advocate failed to inform the defendants of the application seeking to strike out the defence. I do agree with the defendants’ submission that mistake of counsel ought not to be visited on the party. However, the respondents ought to be punished to pay costs of the application. Ultimately, I do set aside judgment entered on 2. 07. 2018 and do give the defendants 3 days to respond to application dated 13. 5.2018. The defendants to pay costs of Kshs.20,000 before filing the replying affidavits. Orders accordingly.
Dated and delivered at Eldoret this 10th day of April, 2019.
A. OMBWAYO
JUDGE