Bamburi Cement Ltd v Telkom Kenya Ltd [2018] KEELC 4320 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment against Telkom Kenya, confirming that a lawyer's neglect is a valid reason for a second chance.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of reasons for default
The Defendant gave sufficient reason for the failure to enter appearance and file defence, having instructed Anjarwalla & Khanna Advocates who accepted instructions but failed to act.
The court found the correspondence exhibited showed the Applicant instructed counsel, who acknowledged the instructions but did not enter appearance or file defence. The defendant did not dispute service, so the judgment was regular, but the mistake of instructed counsel was held to be sufficient reason to exercise the court's discretion in the defendant's favour.
Triable issues in the draft defence
The draft defence raised triable issues, including whether conditions of the donation were complied with and whether the defendant executed the transfer.
Both parties agreed the land was donated in the 1970s to Kenya Posts and Telecommunications Corporation for a telephone exchange and that the defendant was in occupation. The dispute lay over compliance with the conditions of the donation and the execution of the transfer, matters which required trial for adjudication.
Prejudice to the Plaintiff
The Plaintiff failed to demonstrate prejudice; setting aside would allow the case to be heard on merit, consistent with the overriding objective.
The application was filed only four days after the Plaintiff's witness was stood down, and the Plaintiff did not show it would suffer prejudice incapable of remedy. The court held that the effect of the orders would be to allow the case to be heard and determined on merit, which the overriding objective supports.
Legal principles established
#- The court has wide and unfettered discretion to set aside ex-parte judgments, to be exercised on terms that are just, with the main concern being to do justice to the parties.
- A regularly obtained default judgment will not usually be set aside unless a defence on merits (a triable issue) is shown.
- The discretion to set aside is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.
Court orders
#- 1.Application dated 9th November 2017 allowed
- 2.Defendant's Memorandum of Appearance dated 9th November 2017 and filed on 10th November 2017 deemed duly filed upon payment of the requisite fees
- 3.Defendant directed to file its defence within 14 days from the date of the ruling
- 4.Defendant to pay thrown away costs to the Plaintiff
- Jurisdiction invoked
- Sections 1A and 1B of the Civil Procedure Act and Order 10 Rule 11 and Order 42 Rule 6(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bamburi Cement Ltd v Telkom Kenya Ltd [2018] KEELC 4320 (KLR)", Case Analysis (2018). Notice of Motion dated 9th November 2017 (in ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4320/eng@2018-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.