Charo & 5 others v Mwaro & another (Civil Appeal E014 of 2023) [2025] KECA 1701 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that ignoring a lawsuit for three years and blaming your lawyer will not save you from losing your land.
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 Court of Appeal should interfere with the trial Judge's exercise of discretion in declining to set aside the exparte judgment
- 2.Whether the exparte judgment was a regular judgment
- 3.Whether the Appellants gave sufficient reasons (blame of former counsel) for failing to enter appearance and file a defence
- 4.Whether the draft defence raises triable issues
- 5.Whether the Appellants would suffer prejudice if the exparte judgment is not set aside
Key legal issues
#Interference with discretionary decisions on appeal
The Court has no basis to interfere where the trial Judge took into account no irrelevant matters and omitted no relevant ones.
Restating Mbogo v Shah, United India Insurance and Apungu Arthur Kibira, the Court held that an appellant attacking a discretionary decision must show error of law or principle, taking account of irrelevant considerations, failure to take account of relevant considerations, or that the decision is plainly wrong. The Court found none of these errors in the trial Judge's ruling declining to set aside the default judgment.
Blaming counsel for failure to file a defence
Blame of former counsel does not suffice where the litigant is complicit through inaction over a prolonged period.
Although legal fees were paid to the former advocate, the Appellants took no steps for three years to follow up the pending suit, seek updates, or change counsel, and instead continued developing the suit land. Their application came too late in the day and was intended to obstruct or delay the court process; they were complicit and indolent litigants and the trial Judge was right to so find.
Whether the draft defence raises triable issues
The draft defence did not raise triable issues because the grant on which it relied had been nullified and revoked in succession proceedings.
The trial Judge did not consider the draft defence, but nothing turned on that. The Appellants did not deny selling portions of the suit land. The Respondents showed that the High Court in Malindi Succession Cause nullified and revoked the grant obtained by the 1st and 2nd Appellants, rendering their defence largely overtaken by events; setting aside the judgment would serve no useful purpose.
Regularity of the default judgment
The exparte judgment was regular because service of summons was not disputed.
The Appellants accepted that summons were properly served and that they instructed an advocate thereafter. Under the principles in Mohamed & Another v Shoka, the first criterion — whether there is a regular judgment — was satisfied, leaving the Court to consider reasons for default, triable issues, delay and prejudice, all of which the Appellants failed on.
Legal principles established
#- An appellate court will only depart from an exercise of discretion of the trial Judge if the decision was not based on evidence on record, or where the court acted on wrong principles of law, or where the discretion was exercised injudiciously.
- A litigant who blames counsel for default but fails to follow up on the case for years is an indolent litigant whose default will not be excused.
- A court dealing with an application to set aside default judgment must examine the draft defence to determine whether it raises a triable issue.
Court orders
#- 1.The appeal is dismissed
- 2.The Appellants to pay costs of the appeal to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal from the High Court in its original jurisdiction under Rule 31(1) of the Court of Appeal Rules
Relief refused
#Setting aside the exparte judgment and decree of 31st August 2021 and unconditional leave to file a defence
The Appellants were indolent litigants who sat back for three years, and their draft defence does not raise triable issues given the revocation of the grant relied on in their defence
Stay of execution pending appeal
The trial court found and this Court affirmed that no substantial loss was demonstrated
Costs
The appeal is dismissed with costs to the Respondents.
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.
Accordingly, the Appeal is without merit, and is dismissed with costs to the Respondents.
we can find nothing that demonstrates that the learned Judge took into account matters that should not have been taken into account, or failed to take into consideration matters that should have been considered. The learned Judge rightly exercised her discretion in declining to set aside the exparte Judgment
the Appellants’ misadventure with their alleged counsel rests entirely on their indolence, which would infer that their application, which was coming too late in the day, was merely intended to obstruct or delay the court process.
A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial.
Given that they were served with summons, the exparte Judgment that was delivered by the trial court was regular.
Issues in the judgment
#The record recites a reference to a grant revocation in 'Succession Cause No. 115 of 2016' in the Respondents' submissions but elsewhere the judgment quotes the Respondents referring to 'Malindi Succession Cause Number 112 of 2012' as the cause in which the grant was nullified and revoked; the two references are inconsistent.
The names and case number of the parties and appeal are not stated in the judgment as provided; parties are described only as Appellants and Respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charo & 5 others v Mwaro & another (Civil Appeal E014 of 2023) [2025] KECA 1701 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1701/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.