James Ng’ang’a Kibaya & another v Attorney General & 7 others [2020] KEELC 2646 (KLR)
The bottom line
#A Kenyan land court set aside an 8-year-old default judgment because the defendant had a genuine defence worth hearing, despite its long delay.
What this practically means
#Executive summary
#Key legal issues
#Whether there was sufficient explanation for the delay in filing the defence
The court found the Applicants were duty bound to follow their case diligently even with counsel on record, and the 8-year delay was unlawfully long, but the discretion to do justice still favoured setting aside given a triable defence.
The Applicants were served on 29 July 2011, entered appearance late, and a default judgment was entered on 8 February 2012. They only discovered the judgment on 3 July 2019. The court held litigants must follow progress of their cases and cannot rest entirely on counsel's inaction; yet the discretion is to be exercised to do justice between the parties.
Whether the default judgment was regular or irregular
The judgment was regular because summons and the amended plaint were duly served.
A process server, Jornah Mwaura Kabane, served the amended plaint and summons on 29 July 2011 and filed an affidavit of service on 8 February 2012. The Applicants entered appearance thereafter. Following Fidelity Commercial Bank, a judgment entered after service is regular, requiring caution before setting it aside and proof of a defence on the merits.
Whether there is a meritorious/triable defence
Yes - the defence raised triable issues of fraud and validity of title as an innocent purchaser for value.
The 5th Defendant's defence asserted it was an innocent purchaser for value without notice, its title protected under Section 27 of the Registered Land Act, and denied the fraud alleged. The court found allegations and counter-allegations of fraud best resolved at trial on the merits.
Whether the Plaintiff would suffer prejudice
No prejudice that could not be compensated by costs.
Although the Plaintiffs argued their witnesses were aged and the cause of action decades old, the court found they had not demonstrated prejudice incapable of remedy by costs. The court invoked the principle that denying a litigant a hearing should be the last resort, and counsel's mistake should not weigh unduly against a litigant.
Legal principles established
#- Where a default judgment is regular, the court will not usually set it aside unless satisfied there is a defence on the merits
- A judgment entered after proper service is regular; one obtained without proper service is irregular and must be set aside as of right
- A defence on the merits means a defence raising a triable issue, not one that must succeed
- In setting aside default judgment the court considers the reason for failure, elapsed time, triable issues, prejudice and the interest of justice
Court orders
#- 1.The Application dated 29th August 2019 is allowed
- 2.The 5th Defendant/Applicant shall have the costs of the Application
- Jurisdiction invoked
- Order 10 Rule 11 and Order 18 Rule 10 of the Civil Procedure Rules, Section 146(4) of the Evidence Act and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ng’ang’a Kibaya & another v Attorney General & 7 others [2020] KEELC 2646 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2646/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.