Josephat Mailu Ndolo v City Council of Nairobi & another [2018] KEELC 1955 (KLR)
The bottom line
#A Kenyan court refused to reopen a 2015 land judgment because the defendant could not explain its delay and filed a defence of bare denials.
What this practically means
#Executive summary
#Key legal issues
#Discretion to set aside default judgment and grant leave to defend
The discretion was refused because the 1st Defendant failed to explain the delay in learning of the judgment and its draft defence raised no triable issues
The 1st Defendant admitted service of summons on 28/11/2013 and of the Amended Plaint on 4/4/2014 but attributed the default to an officer misplacing the pleadings. Its Director of Legal Affairs did not state when the defendant learnt of the judgment. The draft defence merely denied the claim. The court therefore found no basis to exercise its discretion in the defendant's favour, noting also the prejudice of setting back the plaintiff.
Whether the draft defence disclosed triable issues
It did not; it merely denied the plaintiff's claim of fraudulent repossession and reallocation of Plot No. D5-436 Kayole
The court examined the draft defence attached to the application to see whether it raised triable issues against the plaintiff's claim that the 1st Defendant allotted him the plot, that he complied with the terms and conditions, and that the plot was fraudulently repossessed and reallocated to the 2nd Defendant. The defence contained bare denials and did not raise any triable issue.
Legal principles established
#- An applicant seeking to set aside default judgment must give a plausible explanation for failing to file a defence within the prescribed period, and a draft defence that merely denies the claim does not demonstrate triable issues
Court orders
#- 1.The application dated 10/2/2017 is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Inherent discretionary power to set aside or review judgment and grant leave to defend (application dated 10/2/2017 under the court's discretion; specific enabling provision not cited in the excerpt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Mailu Ndolo v City Council of Nairobi & another [2018] KEELC 1955 (KLR)", Case Analysis (2018). not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1955/eng@2018-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.