Edward Misoi v Francis K Misoi [2021] KEELC 1710 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a default judgment that would have cost a defendant 285 acres of land without being heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 19th March 2019 was regularly or irregularly entered
The judgment was regular because the defendant was properly served, entered appearance and filed a defence, though he did not testify before judgment
The court adopted the two-stage approach: first, whether the judgment was regular or irregular under James Kanyiita Nderitu; second, if regular, whether there were justifiable reasons to exercise discretion. Since summons were served, appearance entered and a defence filed, with the defendant's case closed only because he failed to attend the defence hearing, the judgment fell squarely within Order 12 Rule 2(a) as an ex parte proceeding regularly concluded.
Whether the defendant gave justifiable reasons for his failure to attend the defence hearing
The disclosure by the defendant's counsel on 7th December 2018 confirmed a communication breakdown, though the defendant made no disclosed steps to follow up his case for about a year
The court accepted that parties bear responsibility for their trial and cannot wholly abandon it to advocates, and noted skepticism toward parties who blame advocates without evidence. However, the record of 7th December 2018, in which counsel said he could not trace the defendant and intended to cease acting, corroborated the communication breakdown. The absence of follow-up steps was weighed but did not defeat the application.
Whether the defence raises triable issues
The defendant's defence raises triable issues, being a prima facie defence warranting trial
Applying the Sheridan J test in Patel v E.A. Cargo Handling Services Ltd as restated in Jubilee Insurance Co. Ltd v Grace Anyona Mbinda, the court held it need not assess the validity of the defence but only whether it presents a prima facie case. The court was inclined to find that the defence filed in answer to the plaintiff's claim raises triable issues.
Whether setting aside is warranted in light of the prejudice to the parties and the interests of justice
The lesser prejudice of delay to the plaintiff is tolerable compared with the defendant losing about 285 acres of land without being heard
The court weighed the plaintiff's delay in enjoying a regularly entered judgment against the defendant's potential loss of his proprietary interest in about 285 acres without a hearing. Noting that pleadings were closed, the plaintiff's case had been heard, and only the defendant's testimony remained, with the defence likely heard within about a year, the court found setting aside in the interests of justice.
Legal principles established
#- A distinction exists between regularly and irregularly entered default judgments; a regular default judgment may be set aside only in the court's discretion upon justifiable reasons, whereas an irregular one is set aside as of right
- A trial is the responsibility of the parties and they cannot wholly abandon responsibility for its prosecution at the foot of their advocates
- In assessing whether a defence raises triable issues, the court asks whether it raises a prima facie defence, not whether it will succeed
- In weighing setting aside, the court balances the respective prejudice to each party and the interests of justice on the whole
Court orders
#- 1.That the plaintiff's notice of motion dated the 22nd February 2020 be and is hereby dismissed
- 2.That the defendant's notice of motion dated the 9th December 2020 be and is hereby allowed in terms of prayer 3 (review and setting aside of the entire judgment, decree and subsequent orders)
- 3.That each party do bear his own costs in respect of the two applications
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya, 2010; Sections 1B & 3A of the Civil Procedure Act (Cap. 21); Sections 18 and 19 of the Environment and Land Court Act No. 19 of 2011; Order 12 Rule 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Misoi v Francis K Misoi [2021] KEELC 1710 (KLR)", Case Analysis (2021). Not stated in the judgment (ruling on Notices of Motion dated 22nd February, 2020 and 9th December, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1710/eng@2021-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.