David Kisiero Kiboi v Board of Governors Saboti Secondary School & 2 others [2018] KEELC 3588 (KLR)

Environment and Land Court

26 March 2018

MNMwangi Njoroge

1,122 words in judgment

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The bottom line

A Kenyan land court set aside a default judgment because a party hid ongoing settlement talks from the court, giving the other side a chance to defend the case.

What this practically means

Executive summary

This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) determined an application dated 28/7/2017 by the defendants, a public institution represented by the Principal of Saboti Secondary School, seeking to vacate or set aside the judgment and decree entered on 30/9/2015, leave to file and serve a defence and counter-claim out of time, and that the suit proceed to hearing on its merits. The applicants contended that interlocutory judgment was entered erroneously, that they were not served with the application, hearing notice or notice of entry of judgment, and that the plaintiff was guilty of material non-disclosure. The plaintiff opposed, asserting proper service, appearance by the Attorney General, and indolence by the defendants. The court framed the sole issue as whether the judgment of 30/9/2015 should be set aside, holding that its discretion under Order 10 Rule 11 is unfettered. The undisputed exhibit RR3 (letter dated 4/12/2014) demonstrated comprehensive out-of-court settlement negotiations, including allegations of fraud by the plaintiff in respect of the land, and the plaintiff's supporting affidavit had not disclosed those negotiations. No mutual indication existed that negotiations had broken down, and the valuation report undermined the plaintiff's assertion that he was never given land. Guided by Article 159(2)(c) promoting alternative dispute resolution, the court found the application had merit and allowed it in terms of prayers 3, 4 and 5, setting aside the judgment and deeming the defence and counter-claim properly filed. No costs order was made in the ruling as delivered.

Key legal issues

Whether the interlocutory judgment and decree of 30/9/2015 should be set aside

Holding

The judgment was set aside because the parties were engaged in out-of-court negotiations that were never disclosed to the court, and the draft defence raised allegations of fraud against the plaintiff which were not frivolous, so justice required that the defendants be heard.

Reasoning

The court found the discretion under Order 10 Rule 11 to be unfettered. The undisputed letter dated 4/12/2014 (exhibit RR3) showed comprehensive settlement steps agreed between the parties, and allegations of fraud by the plaintiff regarding the parcel of land. The plaintiff's supporting affidavit in the application dated 4/3/2014 did not disclose the negotiations, and no mutual indication existed that negotiations had collapsed. The valuation report also showed the plaintiff knew where the compensation land was situated, undermining his claim that no land was given. Setting aside the judgment would allow the defendants to raise the fraud defence, doing justice and being seen to be done.

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The relevance of Article 159(2)(c) of the Constitution and alternative dispute resolution

Holding

The court invoked Article 159(2)(c) to note that alternative forms of dispute resolution are to be promoted, and found that the existence of unresolved settlement negotiations should have been brought to the court's attention.

Reasoning

The court held that clause 3 of Article 159 on traditional dispute resolution mechanisms was irrelevant to the dispute, but that the attempt at alternative dispute resolution should have been disclosed in the application dated 4/3/2014, as it may have guided the court in exercising its judicial power over the orders sought.

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Legal principles established

The court's discretion to set aside judgments entered in default of appearance or defence is unfettered and may be exercised on such terms as are just.
Where parties have pursued out-of-court settlement negotiations, a party should not aggressively revert to the court process without proper notice that negotiations were at an end.
Non-disclosure of ongoing settlement negotiations to the court when applying for interlocutory judgment may vitiate the exercise of the court's discretion.

Court orders

1.The application allowed in terms of prayers 3, 4 and 5 thereof, namely setting aside the judgment/decree of 30/9/2015 and consequential orders, granting leave to file and serve the defence and counter-claim out of time, and deeming the defence and counter-claim annexed to the supporting affidavit as properly filed and served

Authorities

Legislation

Civil Procedure RulesOrder 10 Rule 11
Constitution of Kenya, 2010Article 159(2)(c)

Jurisdiction invoked: Inherent discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside a judgment entered in default

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "David Kisiero Kiboi v Board of Governors Saboti Secondary School & 2 others [2018] KEELC 3588 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3588/eng@2018-03-26

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