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ELCAllowed· [2017] KEELC 3719 (KLR)

Joyce Mutethya Kimanthi & another v Isaac Kalua [2017] KEELC 3719 (KLR)

Environment and Land Court
22 September 2017
OAO.A. Angote
563 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside a default judgment, accepting a defendant's delay in filing a defence because it depended on proceedings from an earlier Kitui suit.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion dated 9th November 2016 in which the Defendant sought to set aside an ex parte default judgment entered on 28th September 2016 and leave to defend the suit. The Plaintiffs had sued the Defendant for unlawfully demolishing a building valued at Kshs. 342,500 on parcel Kyangwithya/Tungutu/1153. The Defendant entered appearance on 17th August 2016 but did not file a Defence, and judgment was entered. The Defendant's advocate explained the delay on the ground that he needed copies of the proceedings and judgment in a prior Kitui suit, on which the draft Defence was premised, before filing; the draft Defence pleaded that the demolition occurred in execution of a lawful decree. The 2nd Plaintiff opposed, contending that obtaining proceedings was not a legal prerequisite to filing a Defence and that the draft Defence raised no triable issues. The court found that, since the Defence was predicated on the earlier Kitui suit and the Defendant had applied for its proceedings and judgment on 28th July 2016, the reasons for the delay were plausible. The court allowed the application as prayed, setting aside the default judgment and all subsequent orders and permitting the Defendant to defend the suit, with costs of the application in the cause.

Key legal issues

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Whether the reasons for the delay in filing a Defence justify setting aside the default judgment

Holding

The reasons were plausible because the defence was premised on Kitui CMCC No. 58 of 2015 and the Defendant had applied for those proceedings and judgment before filing a Defence

Reasoning

The court noted that the Defendant's Defence rested on decree proceedings in a prior suit. The evidence showed the Defendant applied for the proceedings and judgment in that suit on 28th July 2016, before judgment was entered here. The explanation for the delay was therefore found plausible and the judgment was set aside to allow the suit to be heard on merits.

p. 2

Legal principles established

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  • A defendant who has pursued obtaining proceedings and judgment in a related suit, on which his defence is premised, may show plausible reasons for delay in filing a defence

Court orders

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  1. 1.The ex parte default judgment entered against the Defendant and all subsequent orders thereto are set aside
  2. 2.The Defendant is granted leave to defend the suit
  3. 3.The suit to be heard on merits
  4. 4.The Application dated 9th November, 2016 is allowed as prayed
Jurisdiction invoked
Not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joyce Mutethya Kimanthi & another v Isaac Kalua [2017] KEELC 3719 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3719/eng@2017-09-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.