[2022] KEELC 2815 (KLR)

Kariuki v Kabaru (Environment & Land Case 446 of 2017) [2022] KEELC 2815 (KLR) (23 June 2022) (Ruling)

Neutral citation: [2022] KEELC 2815 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment & Land Case 446 of 2017

LN Gacheru, J

June 23, 2022

Between

Teresia Wambui Kariuki

Plaintiff

and

Anthony Githaiga Kabaru

Defendant

Ruling

1. The Defendant/Applicant herein Anthony Githaiga Kabaru brought this Application dated 16th December 2021, and sought for the following orders; -a)Spentb)Spentc)That the consent letter dated 15th December 2021, be adopted as an order of this Court and consequently, the Law Firm of Wokabi Mathenge & Co. Advocates be placed on record as acting for the Defendant in place of Waithira Mwangi & Co. Advocates.d)That interlocutory judgement entered on 11th May 2018, be set aside and the Defendant be granted leave to file and serve a defence and any attendant documents.e)That the proceedings and the consequential judgment delivered on 2nd July 2018, be set aside and the parties cases be reopened for hearing afresh on a priority basis with the Defendant and or the parties being granted leave to file such pleadings as may be necessary.f)That costs of this Application be provided for.

2. The Application is premised on the grounds that the Defendant/Applicant disputes the allegations made by the Plaintiff/Respondent and he has a good defence with triable issues.

3. That his former Advocate after having instructed her, did not inform him of any pleadings not filed nor of any that were missing from the Court record. Further that the said former advocate had informed him that the suit had been withdrawn. That after he was informed that the suit had been withdrawn, the original file was then released to him by his former advocate on 2nd March, 2020.

4. However, on 3rd December 2021, persons unknown to him who included the Police Officers visited his land and informed him of an eviction order which had been issued by the Court and the Police were to supervise the said eviction. That the Defendant/Applicant has a good Defence which raises triable issues that require the hearing and hence seeking the setting aside and varying of the Judgement and Decree herein and all the consequential orders thereon; -

5. The Application is supported by the affidavit of the Defendant Anthony Githaiga Kabaru, who averred that sometimes in the year 2017, he was served with pleadings for this case. That he instructed Messers Waithira Mwangi & Co. Advocates to represent him and she filed a Notice of Appointment dated 21st November 2017. Thereafter, she took of conduct of this matter.

6. That as a lay person he relied entirely on advise/information conveyed to him by his former advocate in the handling of this case. That he would occasionally enquire about the case by visiting her office and on call.

7. That he is a farmer and illiterate and he lives in Gathaite area where the suit property; Makuyu/Makuyu/Block II/1284, is situated. Further that he has lived thereon since the year 2007, when he purchased the said land. That the Plaintiff has expressed intention to evict him though he has been on the suit land since 2007.

8. That his former advocates never informed him about this suit proceedings, but had expressed to him that the suit land had been withdrawn and was not going on. That having been informed that the case was withdrawn, he knew the case was no longer going on and later the original files were released to one Kigo Ndungu on 2nd February 2020, by the said former Advocate.

9. That once the files were released, no one bothered to check or follow up with the case.

10. However, on 3rd December 2021, some people went to the suit land with intention of carrying out an eviction and were having in their possession eviction order with police supervision.

11. That he was shocked to learn about the eviction order, and when he visited the Court on 8th December 2021, he learnt that the case proceeded without his participation. That the eviction order was issued on 21st November 2019, and all along, he was unaware of the said eviction orders. That he is likely to suffer irreparably and be prejudiced if the eviction order is enforced, as his family and himself will be rendered homeless and squatters.

12. He urged the Court to allow his Application by setting aside the exparte judgment and ordering rehearsing of the matter afresh. That his draft Defence raises triable issues and that the suit should be heard and determined on merit. That the title held by the Plaintiff ought to be interrogated and this can only be done if the exparte proceedings are set aside and the matter heard afresh. That he is in occupation of the suit land, where he has lived together with his family and if evicted, he will have no alternative place of abode.

13. This Application is opposed by the Plaintiff, Teresia Wambui Kariuki, who filed a Replying Affidavit dated 14th January 2022, and averred that the Defendant/Applicant’s Application is misconceived, incurably defective and should be struck out with costs.

14. Further that the Defendant/Applicant was represented by an Advocate who deliberately failed to file his Defence and seeking to set aside a valid Judgement and reopening of a concluded matter is a blatant abuse of the process of the Court. Further that the purported Defence is just a mere denial, a sham and does not raise any triable issues.

15. That if the Defendant/Applicant was given his original file on 3rd February 2020, he ought to have found out the reasons for such release and also ought to have inquired about the matters from his advocates.

16. That the Defendant/Applicant did not explain the steps he took since the year 2017, when he was admittedly served with Court summons and why he failed to follow up his matter. That he should not attempt to hide behind his illiteracy as an excuse for failure to file his Defence.

17. Further, that the Defendant/Applicant’s former advocate was aware of what was happening in Court as she was served with all the hearing Notices, but deliberately failed to attend Court. Therefore, the Defendant/Applicant’s remedy lies elsewhere as all the hearing and mention notices were duly served as evidenced from the copies in the Court file.

18. She urged the Court not to exercise its discretion of setting aside a valid and regular judgment and decree in favour of a dishonest Defendant/Applicant.

19. It was her contention that the prayers and reliefs sought by the Defendant/Applicant are made in bad faith and are meant to deny the Plaintiff/Respondent the fruits of her Judgement and that litigations must come to an end. That this Application is only meant to delay and circumvent the smooth dispensation of justice as clearly demonstrated herein. That if the Defendant/Applicant has an issue with his former advocates, the remedies lies elsewhere.

20. She urged the Court to dismiss this Application for being misconceived and an abuse of the court process.

21. The Application was canvassed by way of written submissions.

22. The Defendant/Applicant through Wokabi Mathenge & Co. Advocates filed the written submissions dated 3rd February 2022, and urged the Court to allow the Application.

23. It was submitted that the Court should look at the Application wholistically as it touches on the core elements of substance and merits and more importantly the right to fair hearing under the Constitution of Kenya 2010.

24. On whether the consent dated 15th December 2021, should be adopted, it was submitted that under Order 9 Rule 9 of the Civil Procedure Rules, once a consent to change advocate is executed and filed, and a Notice of Change is filed, the new Law Firm is properly on record.

25. On the issue of setting aside exparte Judgment, the Applicant relied on Order 10 Rule 11 of the Civil Procedure Rules which provides;“Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”

26. The Applicant also relied on various cases among them the case of Philip Kiptoo Chemwolo & Mumias Sugar Co. vs Augustine Kubede(1982-1988)KAR where the court held;“The Court has unlimited discretion to set aside or vary judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances, both prior and subsequent and of the respective merits of the parties”.

27. It was the Applicant’s submissions that the Judgement herein was not obtained regularly as there was no proof that the Defendant and/or his advocates were duly served with the hearing notices.

28. Reliance was placed on the case of Moniks Agencies Ltd vs Kenya Airports Authority (KAA) (2019) eKLR where the court held;“The nature of the action should be considered, the defence if one has been brought to the notice of the Court, however irregularly, should be considered; the question as to whether the Plaintiff can be reasonably be compensated by Costs for any delay occasioned should be considered and finally it should be remembered that to deny the subject a hearing should be the last resort of a court”.

29. The Applicant further submitted that he has a Defence on merit with triable issues. That he has a good Defence which requires a hearing and thus the reasons he is seeking to set aside the exparte Judgement and Decree herein. Reliance was also placed on the case of Patel vs. E.A Cargo Handling Services (1974) EA 75, where the Court held;“The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.” I agree that where it is a regular judgment as is the case here, the Court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on merits does not mean, in my view, a defence that must succeed, it means as Sheridan J put it “ a triable issue” that is an issue which raises a prima facie defence and which should go to trial for adjudication.”

30. On her, the Plaintiff/Respondent filed her Written Submissions dated 4th February 2022, and submitted that the Defendant/Applicant does not deserve the orders sought herein.

31. It was the Plaintiff’s submissions that the Defendant/Applicant was served with Summons to Enter Appearance and he appointed an advocate who filed a Notice of Appointment on 21st November 2017. That the said advocate filed a Replying Affidavit dated 15th December 2017, and attended the Pretrial Conference.

32. That it is clear that the Applicant’s former advocates knew of the matter in Court, but failed to follow up. Therefore, the Applicant’s remedy lies elsewhere against his former advocate.

33. The Plaintiff/Respondent relied on the case of Ruga Distributors Ltd Vs Nairobi Butters Ltd (2015) eKLR where the Court held;“whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former advocates, failure to attend court on the date the Application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case”.

34. It was further submitted that the Applicant is trying to evade or obstruct the course of justice by filing the instant Application.

35. The Plaintiff/Respondent further submitted that the Judgement and Decree herein is regular and the Defendant/Applicant’s former advocates failure to file any Defence amounts to professional negligence and therefore the Defendant/Applicant should follow up the said Advocate to shoulder the consequences.

36. Further it was submitted that in the event the Court decides to set aside the valid judgment herein, then the Court should order the Defendant/Applicant to pay appropriate costs of Ksh. 50,000/= which should be exemplary and punitive in the circumstances.

37. The Plaintiff also submitted that the Defendant/Applicant should be ordered to pay specified sum of money into Court to await the final disposal of the matter.

38. The Court has carefully considered the instant Notice of Motion Application and the annextures thereto. The Court too has considered the Written Submissions, general proceedings, the Court records and finds that the issue for determination is whether the instant Application is merited?

39. There is no doubt that the suit herein proceeded exparte after the Defendant/Applicant failed to file his Defence. Judgment was entered in favour of the Plaintiff on 2nd July 2018. The Judgment of the Court was to the effect that the Defendant/Applicant should vacate the suit property being Makuyu/Makuyu/Block II/1284, within 60 days and in default eviction to ensure.

40. It is apparent that the Defendant did not vacate the suit property and on 28th March 2019, the Plaintiff filed an Application for eviction of the said Defendant/Applicant from the suit property. The said Application was allowed on 21st November, 2019.

41. However, the Defendant/Applicant filed the instant Application on 16th December 2021, and alleged that he was not aware of the exprte judgement until 3rd December 2021, when police officers and other persons went to the suit property to enforce a Court order for his eviction.

42. This Application has been brought after entry of Judgement. The Defendant/Applicant was previously represented by the Law Firm of Waithira Mwangi & Co. Advocates.

43. However, the instant Application has been filed by Wokabi Mathenge & Co. Advocates, after the entry of Judgement.

44One of the prayers is that the consent letter dated 15th December 2021, be adopted as the order of the Court. The said consent is to the effect that the Law Firm of Waithira Mwangi & Co. Advocates should be replaced by Wokabi Mathenge & Co. Advocates.

45. Order 9 Rule 9(b) of the Civil Procedure Rules is very clear that;“where there is a change of Advocate or when a party decides to act in person having previously engaged an Advocate after Judgement has been passed, such change or intention to act in person shall not be effected without an order of the Court;a)……..b)Upon consent filed between the outgoing advocate and the proposed incoming advocate and party intending to act in person as the case may be”.

45. The Applicant herein has complied with the above provisions of Order 9(b) Rule 9 of the Civil Procedure Rules, since the consent has been executed and filed and thus the Law Firm of Wokabi Mathenge & Co. Advocates is properly on record.

46. The Applicant had sought for stay of execution of the Decree/Orders issued arising from the Judgment that was delivered on 2nd July 2018, and any consequential orders pending the hearing and determination of this Application. This prayer herein has been overtaken by events. It sought stay pending the determination of the Application. This Application is being determined now and there is nothing to stay.

47. The Applicant has further sought for setting aside of Interlocutory Judgment entered on 11th May 2018, and that the Defendant/Applicant be granted leave to file and serve a Defence and any attendant documents. It is evident that the Defendant herein filed a Notice of Appointment of his Advocate Waithira Mwang & Co. Advocates on 21st November, 2017.

48. However, the said Advocate failed to file any Defence. As a result, the Plaintiff requested for Interlocutory judgement on 11th May 2018, under Order 10 Rule 10 of the Civil Procedure Rules. The said Interlocutory Judgement was entered on 11th May 2018, and the matter was set down for formal proof.

49The Applicant has come under Order 10 Rule 11 of the Civil Procedure Rules seeking to set aside the said Interlocutory Judgement and that he be allowed to file a Defence.Order 10 Rule 11 of the Civil Procedure Rules Provides;“where Judgement has been entered under this order, the Court may set aside or vary such a Judgement and any consequential Decree or order upon such terms as are just”

50. This is a Judgement that was entered in default of filing a Defence.

51. Therefore, the above Judgement was a procedural or regular Judgment that was entered in default of filing a Defence.

52. After the said Interlocutory Judgement, the matter proceeded for formal proof and a Judgment was entered on 2nd July 2018. May be the question that the Court should answer at this Juncture is whether the exparte Judgment entered on 2nd July 2018, and all the consequential orders thereon should be set aside or not. The Court say so because as a result of the Interlocutory Judgment, matter proceeded for formal proof and an exparte Judgment was delivered.

53. The provisions of law that guides the Court on whether to set aside an exparte Judgement are provided for under Order 12 Rule 7 of the Civil Procedure Rules, which provides;“where under this order Judgement has been entered or the suit has been dismissed, the Court on Application may set aside or vary the Judgement or Orders upon such terms as may be just”.

54. It is evident that the power to set aside exparte Judgement/Order is discretionary and which discretion must be used judiciously. The Court must use its discretion to come to a conclusion while also making sure that justice has been done to all the parties. See the case of Shah vs Mbogo & Another (1967) EA 116, where the court held;“The discretion is intended so as to be exercised to avoid injustice on hardship resulting from inadvertence as excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstinct or delay the course of justice”.

55. Further it is clear that the Court’s discretion to set aside an exparte Judgment is not restricted, but the same should be exercised so that it does not cause injustice to the opposite party. See the case of Patel vs E.A. Cargo Handling Services Ltd (1974) EA 75, where the Court held;“There are no limits or restrictions on the judge’s discretion to set aside or vary an ex-parte Judgement, except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the Court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules.

56. Taking into account the above provisions of law and the decided cases and the instant facts of the case, the question is whether the Defendant/Applicant herein is deserving of the Orders of setting aside the exparte Judgment herein that was delivered after he failed to file a Defence and attend Court.

57. There is no doubt that an exparte Judgement was entered on 2nd July 2018, after the matter had gone for formal proof. The Defendant/Applicant advocate who had filed a Notice of Appointment, was served with hearing Notices, but the Defendant and his advocate failed to appear in Court. After the Court had considered the Plaintiff’s evidence, a Judgement was entered in her favour.

58. Further it is evident that several Applications have been filed by the Plaintiff/Respondent herein in pursuant of enforcement of the said exparte Judgement. The Defendant/Applicant has not disputed that pleadings for the said Applications were served upon him. It is the Applicant averments that once he appointed and/or instructed his former advocate, she failed to file any Defence and follow up with the matter. That he was not aware of the said exparte Judgement herein until 3rd December 2021, when Police Officers went to supervise his eviction.

59. However, the Defendant/Applicant as a litigant had a duty to check on the progress of his case and ensure that the same has been prosecuted promptly. In case of Savings & Loans Ltd vs Susan Wanjiru MurituNairobi HCC No. 397 of 2002, the Court held as follows;“whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by former Advocate, failure to attend court on the date the Application was fixed for hearing, it is trite that a case belongs to a litigant and not to her Advocate.A Litigant has a duty to pursue the prosecution of his or her case. The Court cannot set aside dismissal of a suit on the sole ground of mistake by Counsel of the litigant on account of such advocate’s failure to attend Court. It is the duty of the litigant to consistently check with her/his advocate the progress of her case…”

60. The Applicant herein had a duty to check the progress of his case and it is clear herein that the Applicant failed to do so. Therefore, the Applicant has not given sufficient cause or reasons of why he failed to file his Defence and/or attend Court.

61. However, the Court takes cognizes of the fact that it is supposed to excise its discretion judiciously and ensures that the end of justice has been met and that no party should suffer prejudice. See the case of CMC Holdings Ltd Vs Nzioka(2004) IKLR, where the Court held that;“In an Application for setting aside exparte Judgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously”

62. Even if there are no sufficient reasons given for non attendance, the Court should look at the draft Defence and consider whether the same raises triable issues.

63. The Defendant/Applicant has alleged that he has been on the suit property since the year 2007. That Plaintiff’s certificate of title was issued in the year 2016. As has been held by Courts severally, in an Application for setting aside exparte Judgment, the Court should look at the nature of the Defence even if there is no cause for non attendance and a litigant should not be deprived an opportunity of pressing on his Defence. See the case of Kenya Commercial Bank Ltd Vs Reuben Waweru D Kigathi and Another NairobiHCC No. 325 of 1999, where the court held;“The Court has unlimited discretion to set aside or vary Judgment entered by default of appearance, but as usual with all discretionary powers the same discretion must be exercised judiciously and upon reasons……where the Judgment is regular, the Court will not usually set aside the Judgement unless it is satisfied that there is a Defence on the merits and a Defence on the merits does not mean a defence that must succeed, but one that raises triable issues, that is an issue which raises primafacie defence and which should go for trial for adjudication.”

64. The Defendant/Applicant has averred that the Plaintiff’s title might have been acquired fraudulently and/or illegally. The Defendant/Applicant should be given his day in Court, given that the orders that have been sought herein is to evict him from the suit property. The said orders were obtained exparte and drastic orders, capable of removing him from the suit property without having been heard.

65. For the above reasons the court finds that there is a Draft Defence attached to the Applicant’s Application and which Defence raises triable issues. For the above reasons, the Court is inclined to set aside the exparte Judgement that was entered on 2nd July 2018.

66. However, as provided by Order 12 Rule 7 of the Civil Procedure Rules, the said setting aside should be done upon such terms as may be just. The Judgment herein was entered on 2nd July 2018. The Plaintiff has filed several other Applications towards enforcement of the said Judgement. For the above reasons, the Court finds that the Plaintiff is entitled to throw away costs of 50,000/= payable before the commencement of the re-opened suit.

67. Consequently, the Court allows the Defendant/Applicant’s Application dated 16th December 2021, with costs to the Plaintiff/Respondent. The Plaintiff is entitled to costs of 50,000/= to be paid before the suit commences for hearing.

68Further the Defendant is directed to file his Defence within the next 14 days from the date hereof. The suit should thereafter be set down for hearing expeditiously.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 23RD DAY OF JUNE,2022. L.GACHERUJUDGEDelivered virtually in the presence of;Joel Njonjo Court AssistantMr Bwnwonga for the Plaintiff/ RespondentAbsent for the Defendant /ApplicantL.GACHERUJUDGE23/6/2022