Hosea Kiplagat v John Allan Okemwa [2018] KECA 667 (KLR)
The bottom line
#Kenya's Court of Appeal restored a landowner's right to defend a Kshs.10.8 million judgment, ruling he was never served notice of the formal proof hearing.
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 High Court exercised its discretion judicially when it dismissed the appellant's application to set aside the interlocutory judgment
Key legal issues
#Whether the High Court exercised its discretion judicially in dismissing the application to set aside the interlocutory judgment
The High Court misdirected itself by failing to consider the draft defence and whether it raised triable issues, and by ignoring that the appellant was never served with notice of formal proof; the discretion was therefore wrongly exercised and the ruling was set aside.
Order 10 Rule 11 confers a wide discretion to set aside interlocutory judgments on such terms as are just. The Court, guided by Selle and Mbogo v Shah, may interfere where a judge misdirects himself and injustice results. Here Dulu, J. never referred to the annexed draft defence and counterclaim, contrary to the settled principle in CMC Holdings and Tree Shade Motors that a court must assess whether a draft defence raises triable issues. Independently, the appellant, having entered appearance, was not served with notice of formal proof, which under Ngua v Agip entitled him to have the ex parte judgment and all subsequent orders nullified. The advocates' failures were excusable blunders.
Whether mistakes of the appellant's advocates should be visited upon him
The failures of the appellant's first advocates to file a defence and of the second to prosecute the set-aside application were excusable blunders; the appellant's tenacity showed genuine intention to defend, so he should not be denied a hearing.
Relying on CMC Holdings and Philip Chemwolo, the Court adopted the broad equity approach that absent fraud or intention to overreach, no error or default cannot be put right by payment of costs. The Court rejected the respondent's contention that the appellant was not keen to defend the suit, holding that the multiplicity of set-aside applications evidenced the opposite - an intention to be heard. Mistakes of advocates were treated as inadvertence or excusable mistake within the Pithon Waweru Maina principles governing the exercise of the discretion under Order 10 Rule 11.
Whether service of notice of formal proof is required where a defendant has entered appearance
Yes - a defendant who has entered appearance must still be served with notice of formal proof; non-service entitles him to have the ex parte judgment and all subsequent orders set aside.
Although the current Civil Procedure Rules did not retain the old Order IXA rule 1(1) requiring reasonable notice of hearing to every defendant who has appeared, the Court adopted and applied the holding in Ngua v Agip (Kenya) Ltd that a defendant who has appeared must be given reasonable notice of the formal proof hearing so that he may defend or seek leave to file a defence out of time. The appellant was given no such notice, entitling him to have the ex parte judgment and all consequential orders, including the ruling appealed against, nullified.
Legal principles established
#- Where a defendant has entered appearance, he must still be served with notice of formal proof before judgment; failure to serve entitles him to have the ex parte judgment and subsequent orders set aside
- In an application to set aside an ex parte or interlocutory judgment, the court must consider both the reasons for the default and whether the proposed or draft defence raises triable issues; failure to do so is a misdirection
- A court will not interfere with the exercise of judicial discretion unless the judge misdirected himself, arrived at a wrong decision, or was clearly wrong and injustice resulted
- Excusable mistakes or blunders of a litigant's advocates should not be visited upon the litigant by denying him a hearing
Court orders
#- 1.Appeal allowed
- 2.Ruling of the High Court dated 5th June 2012 set aside
- 3.Interlocutory judgment entered on 6th February 2006 and all consequential orders made thereunder set aside
- 4.Appellant allowed to file his defence within 30 days of delivery of the judgment
- 5.Case to proceed at the High Court before any judge other than Dulu, J.
- 6.Appellant to bear the costs of this appeal; costs at the High Court to abide the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1413 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1) of the Court's Rules invoked for the appellate mandate)
Relief refused
#Costs of the appeal against the appellant set aside
Although the appeal succeeded, the Court declined to award the appellant the costs of the appeal, instead ordering him to bear them
Costs
The appellant shall bear the costs of this appeal; the costs at the High Court shall abide the outcome of the suit.
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.
The upshot of the above is that we allow this appeal and set aside the Ruling of the High Court dated the 5th June, 2012. We also set aside the interlocutory judgment entered on 6th February, 2006 and all consequential orders made thereunder.
We hold the view that where a party has entered appearance he must still be served with the notice of formal proof.
It was incumbent upon the learned judge to look at the defence and make a finding on whether it raised triable issues.
we think these were excusable mistakes/blunders by the appellant’s advocates and our view is that the appellant should not suffer injustice as a result of those mistakes.
it will not interfere unless it is satisfied that the judge misdirected self in some matter and as a result arrived at a wrong decision, or that it be manifest from the case as a whole that the judge was clearly wrong in the exercise of discretion and occasioned injustice by such wrong exercise.
Issues in the judgment
#The cause title states the High Court ruling was made by Dulu, J. but says it was 'delivered on the 5th June, 2012 by Hon. Mr. Justice D. Musinga', creating an inconsistency as to which judge delivered the ruling; the body of the judgment attributes the ruling to Dulu, J.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JKK v AMI & another (Environment and Land Appeal E019 of 2022) [2025] KEELC 6008 (KLR)[2025] KEELC 6008 (KLR)11 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Hosea Kiplagat v John Allan Okemwa [2018] KECA 667 (KLR)", Case Analysis (2018). Civil Appeal No. 178 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/667/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.