Kithu Mucamo v Edward Kagane Kagoce [2019] KEELC 2646 (KLR)
The bottom line
#A Kenyan court confirmed you cannot overturn a default judgment on appeal without first filing the proper application in the trial court.
What this practically means
#Executive summary
#Key legal issues
#First appellate court's duty on appeal
A first appellate court must re-evaluate the entire evidence and material on record to satisfy itself of the correctness of the trial court's decision, while making allowance for not having seen or heard the witnesses
Applying Selle v Associated Motor Boat Co Ltd, the court restated the duty of a first appellate court to reconsider the evidence, evaluate it itself and draw its own conclusions, though bearing in mind it neither saw nor heard the witnesses, and not being bound by the trial court's factual findings where those failed to account for material circumstances.
Correct procedure for setting aside an ex parte judgment
The trial court has first-instance jurisdiction to set aside its ex parte judgment; an appellate court can only entertain an appeal against a refusal to set aside, and setting aside cannot be sought from the bar or via submissions
Despite the trial court's advice that the appropriate remedy lay in an application under Order 10 Rule 11 of the Civil Procedure Rules, the Appellant never filed such an application and instead asked the appellate court to set aside the judgment through written submissions. The court held this was unorthodox and declined to accede to it.
Service of process and the ex parte hearing
The appeal against the ruling of 4th July 2016 fails because there was no pending setting-aside application or stay when the caution-removal application was heard; the Respondent was entitled to the fruits of his judgment
The court re-evaluated the record and found the trial court's reasons plausible: the Respondent had a decree, no setting-aside application was pending, and no stay was in force. The contention that the trial court should have investigated service further before ruling on the caution application disclosed no error of law.
Merits of the ex parte judgment
The trial court was entitled to believe the Respondent's unchallenged evidence at the ex parte hearing in the absence of contrary evidence
The hearing proceeded ex parte, so the Respondent's evidence was unchallenged. The court held that any reasonable court properly directing itself on the material on record would have arrived at the same determination, and accordingly found no merit in the grounds of appeal.
Legal principles established
#- An application for setting aside an ex parte judgment cannot be made from the bar or through written submissions; it must be predicated on an application on record before the trial court, which has first-instance jurisdiction over the question
- Lack of service is a good ground for setting aside an ex parte judgment, and even where a party was duly served the court retains jurisdiction to set aside such a judgment on just terms
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The dismissal is without prejudice to the Appellant's right to seek an appropriate remedy under Order 10 Rule 11 of the Civil Procedure Rules
- 3.Each party shall bear his own costs
- On appeal from
- Chief Magistrate's Court at Embu
- Embu CMCC No. 235 of 2015
- Jurisdiction invoked
- Appellate jurisdiction under section 16A of the Environment and Land Court Act (appeals from subordinate courts), read with section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jane Wanjiku Mwangi & another v Nathan Ndegwa Njeru [2020] KEELC 1116 (KLR)[2020] KEELC 1116 (KLR)1 Oct 2020followed
- Willy Kipkoech Kirui (Suing as the Legal representative of John K Arap Rotich) v Peter Kiplangat Rono & 2 others [2020] KEELC 3975 (KLR)[2020] KEELC 3975 (KLR)30 Jul 2020followed
Cite this brief
#Cite this brief
Caselaw, "Kithu Mucamo v Edward Kagane Kagoce [2019] KEELC 2646 (KLR)", Case Analysis (2019). E.L.C. Appeal No. 9 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2646/eng@2019-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.