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ELCDismissedNot stated in the judgment as provided· [2020] KEELC 3975 (KLR)

Willy Kipkoech Kirui (Suing as the Legal representative of John K Arap Rotich) v Peter Kiplangat Rono & 2 others [2020] KEELC 3975 (KLR)

Environment and Land Court (first appellate court over the subordinate court's default judgment)
30 July 2020
JOJ. M. ONYANGO
1,578 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If a Kenyan court enters judgment against you by default, you cannot appeal directly—you must first ask the trial court to set it aside.

What this practically means

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Executive summary

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The Respondent (as plaintiff) had sued the Appellant (as original defendant) over a sale agreement dated 10th May 2012 for one acre of Parcel No. Kericho/Kipchimchim/2196 for Kshs 1,200,000, of which Kshs 500,000 was paid as deposit, with building materials worth Kshs 420,600 delivered to the land. After service, the Appellant failed to enter appearance, and the trial court entered default judgment for the liquidated sums. The Appellant's later application of 26th August 2014 to set aside the ex parte proceedings, stay the auction and seek leave to defend was struck out on 24th September 2014, and no appeal was filed against that ruling. On appeal, counsel for the Appellant argued that the defendant was mentally incapacitated and could not defend himself, that special damages were not formally proved, and that the auctioneer sold the entire parcel at an undervalue contrary to the notification of sale directing sale of one acre. The Respondents countered that the setting-aside application was procedurally defective for lack of a guardian ad litem under Order 32 of the Civil Procedure Rules, 2010, and that the proper forum for setting aside an ex parte judgment was the trial court, citing Kithu Mucamo v Edward Kagane. The court framed a single issue: whether an appeal lies against a default judgment. Relying on Kithu Mucamo and persuasive American scholarship, it held that a default judgment is not directly appealable; the defendant must first seek vacation in the trial court, and only a refusal to set aside is appealable. Since the setting-aside application had been struck out and no appeal lay against that ruling, the appeal was incompetent and was dismissed with costs to the Respondents.

Key legal issues

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01

Whether an appeal lies against a default judgment without first seeking to set it aside in the trial court

Holding

The appeal cannot be entertained; the default judgment is not directly appealable and the appellant's setting-aside application having been struck out without appeal against that ruling, the appeal fails

Reasoning

The court held that after default judgment was entered and notice of entry of judgment served, the appellant's only recourse was to apply to the trial court to set it aside. The appellant's application dated 26th August 2014 was struck out, and the appellant did not appeal that ruling nor properly apply to set aside the ex parte judgment. Following Kithu Mucamo v Edward Kagone, the trial court has first-instance jurisdiction to set aside such judgments; an appellate court may only entertain an appeal against refusal to set aside.

p. 2

Legal principles established

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  • A default judgment cannot be directly appealed; the defendant must first apply to the trial court to vacate or set it aside, and only a refusal to set aside is appealable
  • Where a defendant fails to appear on a liquidated demand, the court shall enter judgment for the sum not exceeding the liquidated demand with interest and costs (Order 10 Rule 4(1), Civil Procedure Rules 2010)

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 10 Rule 4(1)
  • Civil Procedure Rules, 2010Order 22 Rule 6
  • Civil Procedure Rules, 2010Order 32 (3) & (15)

Cases cited (3)

  • Kithu Mucamo v Edward Kagane
    [2019] eKLR
  • Selle v Associated Motor Boat Company Ltd
    [1968] E.A. 123, 126
  • Nanette K. Laughrey, Default Judgments in Missouri, 50 MO. L. REV. (1985)
On appeal from
Trial court (magistrates' court, Kericho)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's default judgment (statutory first appeal); not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Willy Kipkoech Kirui (Suing as the Legal representative of John K Arap Rotich) v Peter Kiplangat Rono & 2 others [2020] KEELC 3975 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3975/eng@2020-07-30

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