Mohammed Adan Issak & another v Chris Ndolo Mutuku [2021] KEELC 2961 (KLR)
The bottom line
#A Kenyan court restored defendants' right to be heard, ruling a default judgment entered after a case file transfer cannot stand when defences were actually filed.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants' defences were filed in the proceedings
The court found, on the basis of court receipts and a KCB cash deposit receipt, that the defences were prima facie filed while the matter was in the ELC, and the trial magistrate erred in finding otherwise.
The appellants produced defences dated 17th March 2016, two court receipts (serial numbers 3562330 and 3562329) and a KCB cash deposit receipt dated 18th March 2016. This prima facie confirmed filing while the matter was in the Environment and Land Court. The trial magistrate ought to have taken into account the copies of the defences attached to the affidavits before him.
Whether the trial magistrate erred in refusing to set aside the ex parte judgment
The trial magistrate erred; he failed to consider the defences and the fact that the matter was transferred to the lower court in the absence of the appellants' advocates, thereby denying the appellants the constitutional right to a fair hearing.
Article 50 guarantees every person the right to be heard. The appellants had filed defences and counsel on record but were not heard after transfer of the file to the Chief Magistrate's Court. The magistrate declined to review despite evidence of filing and the transfer occurring without the appellants' advocates' knowledge; he ought to have allowed the application dated 10th May 2019.
Whether the appeal was time barred or an abuse of process as a disguised third application for review
The appeal, being against the ruling of 26th August 2019, was not time barred and was properly before the court; the appellants only appealed after failing in the review application.
The memorandum of appeal dated 4th September 2019 challenges the ruling and orders of 26th August 2019, so limitation on the 4th April 2019 judgment does not arise. Review and appeal are alternative remedies; what is forbidden is pursuing both at once, and here the appellants filed the appeal only after their review application failed.
Legal principles established
#- An appellate court will not interfere with a trial court's exercise of discretion unless the decision is clearly wrong or based on wrong principles or a misapprehension of evidence.
- The discretion to set aside an ex parte judgment is intended to avoid injustice resulting from accident, inadvertence or excusable mistake, not to assist a person who deliberately obstructs justice.
- A party cannot file an application for review and an appeal against the same decision simultaneously; they are alternative remedies.
- A good defence for purposes of setting aside default judgment is not necessarily one that will succeed.
Court orders
#- 1.The appeal is allowed.
- 2.The ruling and orders of Hon. P. N. Gesora dated 26th August 2019 are set aside in their entirety.
- 3.The application dated 10th May 2019 is allowed and the suit shall be heard afresh before the Chief Magistrates Court.
- 4.Costs of the appeal to be borne by the appellants.
- On appeal from
- Chief Magistrate's Court, Nairobi
- CMCC No 1020 of 2018
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over the ruling of the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Adan Issak & another v Chris Ndolo Mutuku [2021] KEELC 2961 (KLR)", Case Analysis (2021). ELC Appeal No 61 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2961/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.