Eliakim Jaoko Awiti v Benard Isaboke Mbaka & another [2017] KEELC 3011 (KLR)
The bottom line
#A Kenyan court can set aside a default land judgment if the defendant shows a genuine dispute—here, a boundary question needing survey evidence—but only on payment terms.
What this practically means
#Executive summary
#Key legal issues
#Whether a triable issue exists justifying setting aside the ex parte judgment
Yes - the defence raises a genuine dispute as to which parcel the defendants occupy, resolvable only by surveyor's evidence
The 1st defendant claims his activities are confined to parcels 14408 and 14409 which he and his brother own, and denies encroaching on the plaintiff's parcel 15695. Although he does not dispute the plaintiff's registration of 15695, the court found it impossible to determine with certainty which parcel the defendants' structures stand on without technical survey evidence, so the defence raised a triable issue warranting ventilation on the merits.
Whether the court should set aside the judgment despite possibly valid service
Yes - the court declined to make a finding on validity of service and set aside the judgment on terms in the interest of justice
The court held that its discretion to set aside ex parte judgments is wide and unlimited, to be exercised judiciously, and that where a reasonable defence raising a triable issue is shown, the court will set aside even a validly obtained judgment albeit on terms. Executing the judgment risked injustice if it later emerged the defendants were not on the plaintiff's land.
Territorial jurisdiction over the suit land
The land is within the territorial jurisdiction of the Migori Environment and Land Court, so the file is transferred there
Having set aside the judgment, the court noted the subject land lies within Migori's territorial jurisdiction and directed transfer of the file to that station for hearing and final determination or further directions.
Legal principles established
#- The court's discretion to set aside an ex parte judgment is wide and unlimited but must be exercised judiciously; where the applicant demonstrates a reasonable defence raising a triable issue, the discretion is exercised in the applicant's favour
- The court's main concern is to do justice to the parties and will not impose conditions fettering its wide discretion (Patel v E.A. Cargo Handling Services Ltd, cited with approval)
- The discretion to set aside is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately sought to obstruct or delay the course of justice (Shah v Mbogo, cited with approval)
Court orders
#- 1.The application dated 16th November 2016 is allowed and the judgment delivered on 23rd June 2016 is set aside
- 2.The plaintiff is awarded 'thrown away' costs of Kshs. 15,000/= to be paid within 30 days, failing which the judgment of 23rd June 2016 stands reinstated and the plaintiff may execute it
- 3.The file is transferred to Migori Environment and Land Court for hearing and final determination
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliakim Jaoko Awiti v Benard Isaboke Mbaka & another [2017] KEELC 3011 (KLR)", Case Analysis (2017). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3011/eng@2017-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.